UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
WEST FELICIANA DIVISION

ELZIE BALL, NATHANIEL CODE, AND JAMES MAGEE,
PLAINTIFFS
VS.
JAMES M. LEBLANC, SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, BURL CAIN, WARDEN OF THE LOUISIANA STATE PENITENTIARY, ANGELA NORWOOD, WARDEN OF DEATH ROW, AND THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
DEFENDANTS

* CIVIL ACTION NO. 13-368 * * * * SECTION __________ * * * JUDGE _________________ * * * * MAGISTRATE JUDGE _________ * * * * * *

COMPLAINT
STATEMENT OF CLAIM
1. Plaintiffs Elzie Ball (“Ball”), Nathaniel Code (“Code”), and James Magee (“Magee”) (collectively, “Plaintiffs”) bring this civil action for declaratory and injunctive relief, seeking redress from Defendants James M. LeBlanc (“LeBlanc”), Burl Cain (“Cain”), Angela Norwood (“Norwood”), and the Louisiana Department of Public Safety and Corrections (the “DOC”) (collectively, “Defendants”) for the constitutional violations taking place at the Louisiana State Penitentiary in Angola, Louisiana (“Angola”).
2. Defendants LeBlanc, Cain, and Norwood are liable for the deprivation of Plaintiffs’ constitutional rights under color of law and in violation of their Eighth and Fourteenth Amendment rights to protection from cruel and unusual punishment under 42 U.S.C. § 1983 (“Section 1983”).
3. Defendant DOC is liable for the deprivation of Plaintiffs’ rights under Title II of the Americans with Disabilities Act (the “ADA”), and the Americans with Disabilities Act 1
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Amendment Act (the “ADAAA”), 42 U.S.C. § 12131, et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”), which require public facilities, like Angola, to make reasonable accommodations for people with disabilities, like Plaintiffs.
JURISDICTION AND VENUE 4. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question),
§ 1343 (civil rights), and § 2201 (Declaratory Judgment Act). 5. Venue is proper in this district pursuant to 24 U.S.C. § 1391(b), as the events complained of
occurred in this district. PARTIES
A.) Plaintiffs 6. Plaintiffs are individuals currently incarcerated at Angola’s Death Row. 7. Plaintiffs have exhausted the administrative remedies available to them at Angola.
B.) Defendants 8. Defendant Cain is the Warden of Angola.
a. He has been in that position since 1995. b. In this capacity, he exercises operational control over Angola by making staffing,
budget, and administrative decisions. c. By law, he is responsible for protecting the constitutional rights of all persons held in
Angola’s custody. d. At all relevant times, Cain was acting under color of law and as the agent, and, as a
matter of law, the official representative of Angola. e. He is sued in his official capacity for declaratory and injunctive relief. f. Since at least April of 2012, Plaintiffs have attempted, through letters and phone calls
by their counsel, to engage Warden Cain in a dialogue about the risk of harm posed by excessive heat to those on Death Row and how Defendants might seek to alleviate the conditions on Angola’s Death Row.
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g. After numerous letters and phone calls, Defendant Cain in a terse communication dismissed Plaintiffs’ concerns in a conclusory fashion and asserted that conditions on Angola’s Death Row are acceptable.
h. He can be served at 17544 Tunica Trace, Angola, LA 70712.
9. Defendant Norwood is the Assistant Warden of Death Row.
a. She has been in that position since 2011.
b. In her capacity as Assistant Warden of Death Row, she exercises operational control over Death Row by making staffing, budget, and administrative decisions.
c. By law, she is responsible for protecting the constitutional rights of all persons incarcerated on Angola’s Death Row.
d. At all relevant times, Norwood was acting under color of law and as the agent, and, as a matter of law, the official representative of Angola.
e. She is sued in her official capacity for declaratory and injunctive relief.
f. Since 2012, Plaintiffs, through their counsel, have discussed the problem of extreme heat on Death Row with Defendant Norwood.
g. She has been aware of the ongoing suffering of Plaintiffs, as a result of Plaintiffs’ Requests for Administrative Remedy and discussions with Plaintiffs’ counsel about the conditions on Angola’s Death Row.
h. She can be served at 17544 Tunica Trace, Angola, LA 70712.
10. Defendant LeBlanc is the Secretary of Louisiana’s Department of Public Safety and Corrections (“DOC”).
a. He was appointed to this position by Governor Piyush “Bobby” Jindal. In his capacity as Secretary, LeBlanc has control of the Louisiana Department of Public Safety and Corrections (the “DOC”).
b. By law, he is responsible for protecting the constitutional rights of all persons held in the DOC’s custody.
c. At all relevant times, LeBlanc was acting under color of law and as the agent, and, as a matter of law, the official representative of DOC.
d. He is sued in his official capacity for declaratory and injunctive relief.
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e. He has been aware of the concerns surrounding extreme heat conditions on Angola’s Death Row since at least April 2012, when Plaintiff’s counsel copied him on their communication with Warden Cain.
f. He can be served at 504 Mayflower Street, Baton Rouge, LA 70802.
11. Defendant DOC, the Louisiana Department of Public Safety and Corrections, is the state prison system, a division of the State of Louisiana.
a. It is charged with overseeing the custody and care of offenders in Louisiana.
b. At all relevant times, the DOC operated Angola, a public facility with programs and services.
c. The DOC is the recipient of federal funds.
d. The DOC is sued for declaratory and injunctive relief.
e. The DOC can be served at 504 Mayflower Street, Baton Rouge, LA 70802.
FACTUAL ALLEGATIONS
12. Plaintiffs’ suit arises from the appalling and extreme conditions that Plaintiffs suffer each summer as a result of the extreme heat on Angola’s Death Row, and the substantial risk of serious harm, including permanent injury and even death, to which these conditions expose them. Plaintiffs have no way of alleviating these conditions themselves, and what little means Defendants make available to Plaintiffs do little or nothing to alleviate the extreme heat conditions that Plaintiffs suffer.
A.) Angola’s Death Row Facility
13. In 2008, with the use of federal funds, Angola constructed a new facility (the “Death Row Facility”) designed to house individuals who had been sentenced to death and were to be incarcerated on Death Row.
14. The Death Row Facility is equipped with air ducts attached to a cooling system.
15. On information and belief, the entire Death Row Facility is outfitted with ductwork for climate control.
16. The areas of the Death Row Facility which house visitation rooms, guard towers, and administrative offices are routinely air conditioned.
17. The Death Row Facility tiers (the “Death Row tiers”) that are occupied by the inmates have no climate control other than fans. 4
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18. During the summer months, the temperature on the Death Row tiers regularly rises above 95°F and the relative humidity regularly exceeds 92%, according to local weather data tracked by the National Weather Service. By another measure, the heat index – i.e. the apparent temperature, which measures how hot it feels – was extremely high and regularly reached into the “danger” and “extreme danger” zones, according to the National Oceanic and Atmospheric Administration (the “NOAA”). At these “danger” and “extreme danger” zones, the NOAA warns of the risks of heat-related health hazards and disorders.
19. On information and belief, Angola staff do not measure or record relative humidity on-site.
20. On information and belief, in Summer 2012, the heat index on all six Death Row tiers reached into the “danger” and “extreme danger” zones – the two highest categories of NOAA’s heat index table, where the perceived temperature is above 103°F – every day in August. On two of six tiers, the same was true for every day in July. Tier C, which appeared to be the hottest tier, reached the “extreme danger” zone – above 126°F – on 85 days between May and August 2012. On more than one occasion in 2011, the recorded temperature was 100°F the relative humidity 100%, putting the heat index at 195°F.
21. The heat conditions on the Death Row tiers are, simply put, extreme and unsafe.
22. Exposure to such heat conditions puts even a healthy individual at risk of heat stroke, which can precipitate permanent neurological damage and death.
23. Individuals with preexisting illnesses like hypertension, such as plaintiffs, are at greater risk of succumbing to these conditions when under heat stress.
24. Plaintiffs are forced to face these conditions virtually all of the time during the summer months because they are incarcerated in cells on the Death Row tiers for twenty-three out of twenty-four hours per day. Four times a week, as part of their one hour outside of their cells, Plaintiffs are permitted to go outside for exercise. Because of the lack of ventilation in Plaintiffs’ cells, the temperature outside, while hot, is cooler than the temperature inside the cells.
25. During the summer, the bars of the cells are hot to the touch and the cinderblock walls release additional heat.
26. Plaintiffs have little to no ability to take steps to cool their bodies when heat levels on the Death Row tiers are extreme.
27. Although there are some fans on the Death Row tier, the fans merely blow hot air into Plaintiffs’ cells and do not function to alleviate the high humidity levels inside the tiers. The fans feel like blow dryers blowing hot air into the cells.
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28. During the hottest summer months, when temperatures remain uncomfortably high through the night, Plaintiffs resort to sleeping on the hard floor, in spite of the risk of bites from fire ants, because the floor is slightly cooler than their beds.
29. On information and belief, during the summer months, staff and visitors to the Death Row tier have complained about having to spend even a few minutes on the Death Row tiers where Plaintiffs are incarcerated.
30. When a door connecting a Death Row tier to the central part of the building opens, Plaintiffs rush to the front of their cells to feel the relief of just a few seconds’ gust of cool airconditioned air that quickly dissipates from the Death Row tier.
31. Showers are ineffective in alleviating Plaintiffs’ suffering during the summer months because when the showers are available to Plaintiffs, the water is usually scalding hot.
32. On information and belief, water temperatures regularly exceed 115°F on the hottest days of the summer. Plaintiffs are unable to control the temperature of the water available to them in the shower facilities.
33. Drinking water within the Death Row facility is malodorous and contaminated with debris.
34. Ice is available to Plaintiffs only intermittently and can only be obtained when inmates choose to get ice for one another during the one hour, four times per week, that inmates are permitted outside of their cells. Defendants do not provide ice as a matter of course despite the extreme heat on the Death Row tiers. The ice machine regularly breaks down, further lessening Plaintiffs’ capacity to obtain ice during the hottest hours of the day.
35. Even when ice is available, the ice provided to inmates, including Plaintiffs, contains debris and is infested with insects.
B.) Health Risks of Extreme Heat and Risk Management
36. According to the National Weather Service, heat is the number one weather-related killer in the United States, resulting in hundreds of fatalities each year. On average, heat kills more people than “floods, lightning, tornadoes, and hurricanes combined.”
37. Research has shown that people with age over 60 years, obesity, hypertension, pulmonary or cardiovascular disease, or long-standing diabetes are at increased risk of heat-related illness – heat cramps, heat exhaustion, and heat stroke – during prolonged heat events. Other contributing factors include homebound lifestyle, lack of contact with other people, and decreased mobility. These conditions characterize daily life on Angola’s Death Row.
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38. Heat-related illnesses occur when the body’s temperature control system is overloaded. On information and belief, the risk for heat-related illness increases significantly when temperatures exceed 90 degrees, especially with high relative humidity.
39. Persistent heat stress can lead to heat stroke, in which the body’s internal temperature rapidly increases. Heat stroke can cause organ damage, neurological damage, permanent disability, and death.
40. It is rudimentary that measures taken to control climate conditions can alleviate the risks posed by extreme heat. Plaintiffs have little if any ability to control the climate conditions posed by the extreme heat they face each summer. Defendants have failed to address Plaintiffs’ needs to control the climate conditions they face on the Death Row tier.
C.) Plaintiffs’ Medical Conditions and Interactions with Extreme Heat
41. Plaintiffs all suffer from hypertension.
42. Hypertension, or high blood pressure, is a chronic medical condition in which the blood pressure in the arteries is elevated. The high pressure of blood flow on artery walls can cause serious damage. Hypertension is a major risk factor for stroke, heart attacks, heart failure, aortic aneurysms, and peripheral arterial disease, and is a cause of chronic kidney disease. It can also cause severe headaches, fatigue, obesity, and vision problems. Even moderate elevation of arterial blood pressure is associated with a shortened life expectancy.
43. Hypertension increases susceptibility to heat stress by overloading the cardiovascular system to a point where the heart is not able to circulate blood at the rate needed to keep the body cool. Subjecting hypertensive persons to extreme heat can cause impaired motor and cognitive function, reduced blood flow, and a breakdown of the blood/brain barrier.
44. The use of antihypertensive medications including diuretics, vasodilators, and beta-blockers is necessary to protect Plaintiffs’ health from their disability.
45. The use of these medications can significantly reduce heat tolerance and predispose the person taking them to severe heat-related illness because they depress cardiac function and impair cardiac output, lessening the body’s ability to regulate its temperature by circulating blood to the skin.
46. Diuretic medications also increase the risk of dehydration by causing increased urination and thereby quickening the body’s loss of water, electrolytes, and essential salts. Individuals taking diuretic medications need greater access to clean drinking water during periods of extreme heat in order to maintain adequate hydration.
D.) Plaintiff Ball’s Health Risk Factors and the Impact of Extreme Heat
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47. Plaintiff Ball is 60 years old. He suffers from hypertension, for which he takes a diuretic medication, as well as diabetes and obesity. These medical conditions increase Mr. Ball’s vulnerability to the heat.
48. Diabetes is a metabolic disease. Diabetes causes increased urination, increased thirst and increased hunger. Absent adequate treatment, diabetes can lead to cardiovascular disease, renal failure and retinal damage.
49. Hypertension exacerbates the health risks associated with diabetes.
50. Diabetes makes Mr. Ball especially susceptible to dehydration, which is particularly dangerous during extreme heat because hydration is necessary to the body’s internal temperature regulation.
51. Obesity is a medical condition characterized by the excessive accumulation of body fat. Lack of physical activity and a sedentary lifestyle can contribute to obesity by preventing the body from processing calories efficiently.
52. Obesity is a risk factor for heat stroke because obese individuals have more insulation and a lower surface-area-to-volume ratio, and therefore less capacity for dissipating heat.
53. While subjected to the extreme heat on Death Row, Mr. Ball experiences the symptoms of heat exhaustion, including dizziness and lightheadedness, headaches, blurred vision, chest pain, joint pain and stiffness, profuse sweating, and inability to sleep.
54. DOC has and continues to discriminate against Mr. Ball due to disability, including hypertension and diabetes, by denying reasonable accommodations necessary to allow him access to a safe living environment. The extreme heat on Angola’s Death Row denies Mr. Ball “access” to DOC facilities under federal disability law.
E.) Plaintiff Code’s Health Risk Factors and the Impact of Extreme Heat
55. Plaintiff Code is 57 years old. He suffers from hypertension, for which he takes a diuretic medication, as well as obesity and hepatitis. These medical conditions increase Mr. Code’s vulnerability to the heat.
56. Obesity as a medical condition and heat risk factor is described above in paragraphs 51-52.
57. Hepatitis is a condition characterized by inflammation of the liver. Mr. Code treats his hepatitis with medicine.
58. While subjected to the extreme heat on Death Row, Mr. Code experiences symptoms of heat exhaustion including dizziness and lightheadedness, headaches, sensitivity to light, profuse
8
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sweating, numbness in his hands, dehydration, loss of concentration, joint pain, and inability to sleep.
59. Defendant DOC has and continues to discriminate against Mr. Code due to disability, including hypertension and hepatitis, by denying reasonable accommodations necessary to allow him access to a safe living environment. The extreme heat on Angola’s Death Row denies Mr. Code “access” to DOC facilities under federal disability law.
F.) Plaintiff Magee’s Health Risk Factors and the Impact of Extreme Heat
60. Plaintiff Magee is 35 years old. He suffers from hypertension, for which he takes a diuretic medication, as well as high cholesterol and depression, for both of which he also takes medication.
61. These medical conditions and treatments increase Mr. Magee’s vulnerability to the heat.
62. High cholesterol is a condition that increases the risk of cardiovascular disease through the thickening, narrowing or blocking of arteries. High cholesterol may exacerbate Mr. Magee’s hypertensive symptoms.
63. Depression is a mood disorder characterized by profound feelings of sadness, lethargy and dread.
64. Mr. Magee treats his depression with medicine. On information and belief, this medicine that Mr. Magee must take because of his depression can exacerbate the negative psychological effects of the extreme heat conditions.
65. While subjected to the extreme heat on Death Row, Mr. Magee experiences symptoms of heat exhaustion including dizziness and lightheadedness, loss of appetite, inability to sleep, difficulty breathing, profuse sweating, weakness, nausea, anxiety, dehydration and loss of concentration.
66. DOC has and continues to discriminate against Plaintiff Magee due to disability, including hypertension, high cholesterol and depression, by denying reasonable accommodations necessary to allow him access to a safe living environment. The extreme heat on Angola’s Death Row denies Plaintiff Magee “access” to DOC facilities under federal disability law.
CAUSES OF ACTION
I. EIGHTH AND FOURTEENTH AMENDMENT CONDITIONS OF CONFINEMENT
(Against Defendants LeBlanc, Cain, and Norwood)
9
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67. By subjecting Plaintiffs to these extreme conditions of confinement, specifically excessive heat, with full knowledge of the dangerousness of those conditions, Defendants LeBlanc, Cain, and Norwood are acting and have acted with deliberate indifference to Plaintiffs’ serious health and safety needs, in violation of their rights under the Eighth and Fourteenth Amendments to the United States Constitution.
68. The extreme temperatures Defendants allow at Angola put Plaintiffs at a substantial risk of serious harm to their health and safety.
69. Plaintiffs bring these claims through 42 U.S.C. § 1983.
II. AMERICANS WITH DISABILITIES ACT, AMERICANS WITH DISABILITIES ACT AMENDMENT ACT AND REHABILITATION ACT
(Against Defendant DOC)
70. Defendant DOC has been, and is, a recipient of federal funds, and thus is covered by the mandate of the Rehabilitation Act. The Rehabilitation Act requires recipients of federal monies to reasonably accommodate persons with disabilities in their facilities, program activities, and services and reasonably modify such facilities, services, and programs to accomplish this purpose. 29 U.S.C. § 794 (2008).
71. Further, Title II of the ADA, and the ADAAA, apply to DOC and have the same mandate as the Rehabilitation Act. 42 U.S.C. § 12131 et seq. (2008).
72. Angola is a facility, and its operation comprises a program and service, for Rehabilitation Act, ADA, and ADAAA purposes. Plaintiffs are otherwise qualified to participate in the programs and services at Angola on Death Row.
73. For purposes of the ADA, ADAAA, and Rehabilitation Act, Plaintiffs are qualified individuals regarded as having physiological impairments that substantially limit one or more of their major life activities. 42 U.S.C. § 12102. Defendant DOC knows Plaintiffs suffer from hypertension and, respectively, diabetes, hepatitis, and high cholesterol, and are prescribed medications including diuretics. Despite this knowledge, DOC officers have and continue to intentionally discriminate against them, under the meaning of the ADA, ADAAA, and Rehabilitation Act, by failing and refusing to protect them from the extreme temperatures that put them at substantial risk of serious harm.
74. As alleged above, DOC has failed and refuses to reasonably accommodate Plaintiffs’ disabilities while in custody, in violation of the ADA, ADAAA, and Rehabilitation Act. That failure and refusal put them at substantial risk of serious harm.
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75. As alleged above, DOC has failed and refuses to reasonably modify its facilities, services, accommodations, and programs to reasonably accommodate Plaintiffs’ disabilities. These failures and refusals pose the risk of more-than-minimal injury.
ATTORNEYS’ FEES AND COSTS
76. Pursuant to 42 U.S.C. § 1988, Plaintiffs are entitled to recover attorneys’ fees and costs. Plaintiffs also request attorneys’ fees, costs, and expenses against DOC for the ADA, ADAAA, and Rehabilitation Act claims, pursuant to 42 U.S.C. §§ 12205 and 1983.
PRAYER FOR RELIEF
THEREFORE, Plaintiffs respectfully request that the Court award the following relief:
A. Order Defendants to abate the risk of serious harm described above by taking steps including but not limited to: a. Maintaining a heat index along all Death Row tiers that does not exceed 88°F (calculated using the NOAA National Weather Service heat index table); b. Providing clean, uncontaminated ice and drinking water at regular intervals during the summer months; c. Providing shower water of a temperature that can reasonably provide relief.
B. Enjoin Defendants and their staff from retaliating against Plaintiffs in any manner for filing this complaint;
C. Grant declaratory and injunctive relief, as set out in this Complaint; D. Find that Plaintiffs are the prevailing party in this case and award them attorneys’ fees, court
costs, expert costs, and litigation expenses; and, E. Grant such other and further relief as appears reasonable and just, to which Plaintiffs may be
entitled.
Respectfully submitted,
/s/ Mercedes Montagnes Mercedes Montagnes, La. Bar No. 33287 (Lead Counsel) Elizabeth Compa, La. Bar No. 35004 The Promise of Justice Initiative
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636 Baronne Street New Orleans, LA 70113 Tel. (504) 529-5955 Fax (504) 558-0378 Email: mmontagnes@thejusticecenter.org
Mitchell A. Kamin, Ca. Bar No. 202788 (Pro Hac Vice Pending) Jessica C. Kornberg, Ca. Bar No. 264490 (Pro Hac Vice Pending) Nilay U. Vora, Ca. Bar No. 268339 (Pro Hac Vice Pending)
Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, P.C.
1875 Century Park East, 23rd Floor Los Angeles, California 90067-2561 Tel. (310) 201- 2100 Fax (310) 201- 2110 Steven Scheckman, La. Bar No. 08472 Schiff, Scheckman, & White LLP 829 Baronne Street New Orleans, Louisiana 70113 Tel. (504)581-9322 Fax (504)581-7651 Email: steve@sswethicslaw.com
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
WEST FELICIANA DIVISION

ELZIE BALL, NATHANIEL CODE, AND JAMES MAGEE,
PLAINTIFFS
VS.
JAMES M. LEBLANC, SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, BURL CAIN, WARDEN OF THE LOUISIANA STATE PENITENTIARY, ANGELA NORWOOD, WARDEN OF DEATH ROW, AND THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
DEFENDANTS

* CIVIL ACTION NO. 13-368 * * * * SECTION __________ * * * JUDGE _________________ * * * * MAGISTRATE JUDGE _________ * * * * * *

RELATED CASE:
Advocacy Center v. Burl Cain, et al. Civil Action No. 3:12-508 BAJ-SCR
Description:
Plaintiff filed a complaint for injunctive and other relief seeking a court order that would require Defendants to permit Plaintiff’s attorneys and a medical expert to visit the Death Row facility at the Louisiana State Penitentiary, speak with prisoners there about excessive heat conditions, and bring an instrument that measures humidity, in addition to providing certain temperature records from the prison. The action was filed Aug. 17, 2012, and subsequently settled.
Relationship to the present case:
The Advocacy Center’s 2012 action precipitated the present action in that it was taken in furtherance of an effort to investigate heat conditions on Death Row at the Louisiana State Penitentiary, which is the subject of the present lawsuit.

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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 13-00368-BAJ-SCR

ORDER
IT IS ORDERED that Defendants' Motion for Leave to Remove Awnings and Incorporated Memorandum (Doc. 79) is DENIED. The awnings installed by Defendants outside of Tiers C and G of the Death Facility at the Louisiana State Penitentiary in Angola, Louisiana shall remain in place until otherwise ordered by this Court.
Baton Rouge, Louisiana, this 17th day of September, 2013.

BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 13-00368-BAJ-SCR

RULING AND ORDER
I. INTRODUCTION On August 5, 2013, this matter came before the Court for a non-jury trial on the
merits and a hearing on Plaintiffs’ Motion for a Preliminary Injunction (Doc. 12).1 Having considered the parties pretrial and post-trial submissions, the evidence introduced at the trial, and the arguments presented by counsel, the Court finds that Plaintiffs have satisfied their burden of proving that Defendants have subjected them to cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution. The Court finds, however, that Plaintiffs did not introduce sufficient evidence to establish that Defendants have violated the Americans with Disabilities Act, as modified by the Americans with Disabilities Act Amendment Act, and Section 504 of the Rehabilitation Act of 1973. Accordingly, Plaintiffs’ request for declaratory and injunctive relief is GRANTED IN PART and DENIED IN PART, as
1 The Court initially heard Plaintiffs’ Motion for a Preliminary Injunction with oral argument on July 2, 2013. (Doc. 24.) At the conclusion of the hearing, the Court deferred its ruling on the motion, pending the collection of essential data by a neutral third-party expert, re-set the motion hearing to August 5, 2013, and set the trial on the merits to August 5, 2013.

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outlined below. Further, Plaintiffs’ Motion for a Preliminary Injunction (Doc. 12) is
DENIED AS MOOT.2 The Court’s credibility findings, findings of fact and conclusions
of law are set forth below, as required by Federal Rule of Civil Procedure (“Rule”) 52(a).
II. JURISDICTION
It is uncontested that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331,
1343, and 2201.
III. BACKGROUND
A. Plaintiffs’ Claims
Plaintiffs Elzie Ball (“Ball”), Nathaniel Code (“Code”), and James Magee
(“Magee”) (collectively “Plaintiffs”) are death row inmates, who are currently
incarcerated at the Louisiana State Penitentiary in Angola, Louisiana (“Angola”).
Plaintiffs filed this lawsuit against Defendants James M. LeBlanc3 (“LeBlanc”), Nathan
Burl Cain4 (“Cain”), Angelia5 Norwood6 (“Norwood”), and the Louisiana Department of
2 Whether to grant or deny a request for a preliminary injunction is within the sound discretion of the district court. See Allied Marketing Group, Inc. v. CDL Marketing, Inc., 878 F.2d 806, 809 (5th Cir. 1989). However, the purpose of a preliminary injunction is to prevent irreparable injury so as to preserve the Court’s ability to render a meaningful decision on the merits. Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 627 (5th Cir. 1985) (citing Canal Authority of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)). Because the Court now issues its ruling and order on the merits, a preliminary injunction is no longer necessary. Therefore, Plaintiffs’ request is denied as moot. 3 Defendant LeBlanc is the Secretary of the Louisiana Department of Public Safety and Corrections. (Doc. 1, ¶ 10.) LeBlanc is sued in his official capacity for declaratory and injunctive relief. 4 Defendant Cain is the Warden of the Louisiana State Penitentiary in Angola, Louisiana. (Doc. 1, ¶ 8.) Cain is sued in his official capacity for declaratory and injunctive relief. 5 Plaintiffs identified Defendant Norwood at “Angela” in their complaint. However, Defendant Norwood’s testimony at trial was that her first name is spelled as above. 6 Defendant Norwood is the Assistant Warden in charge of death row at the Louisiana State Penitentiary in Angola, Louisiana. (Doc. 1, ¶ 9.) Norwood is sued in her official capacity for declaratory and injunctive relief.
2
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Public Safety and Corrections (collectively “Defendants”) pursuant to 42 U.S.C. § 19837 (“Section 1983”); the Eighth Amendment to the United States Constitution, U.S. Const. amend. VIII; Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV, § 1; Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq., as modified by the Americans with Disabilities Act Amendment Act (the “ADAAA”), 42 U.S.C. § 12131, et seq.; and Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 794. (Doc. 1.) Plaintiffs allege that Defendants have violated, and continue to violate, their rights under the Eighth Amendment, ADA, ADAAA, and Rehabilitation Act by subjecting them to excessive heat, acting with deliberate indifference to their health and safety, and discriminating against them on the basis of their disabilities.
Plaintiffs seek a ruling and order from this Court granting their Motion for a Preliminary Injunction (Doc. 12), and requiring Defendants to take action to decrease and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit.8 Plaintiffs further seek a ruling and order: (1) declaring that Defendants

7 As discussed below, the gravamen of Plaintiffs’ Section 1983 claim is that Defendants have subjected them to cruel and unusual punishment, in violation of the Eighth Amendment, made applicable to the States by the Fourteenth Amendment.
8 Plaintiffs request that Defendants be required to decrease and maintain the heat index at or below 88 degrees Fahrenheit based on the recommendations of their expert, Dr. Susan Vassallo, M.D.:

BY MR. KAMIN:

And do you have an opinion, Dr. Vassallo, on the heat index thresholds that you would recommend for creating a safer environment for the Plaintiffs on death row?

BY DR. VASSALLO:

Well, in my report, I have put that temperature at 88 degrees. That is probably towards the warmer side . . . none of us would tolerate being in a setting at 88 degrees heat index . . . we would get out of that and we

3

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have violated Plaintiffs’ rights; (2) requiring Defendants to develop and implement a
long-term plan to maintain the heat index in the Angola death row tiers at or below 88
degrees Fahrenheit; (3) appointing a monitor to oversee Defendants’ implementation
of such plan; (4) requiring Defendants to provide Plaintiffs clean, uncontaminated ice
and drinking water at regular intervals during the summer months; (5) requiring
Defendants to lower the shower temperature during the summer months; and (6)
enjoining Defendants from retaliating against Plaintiffs.9 Plaintiffs also seek
attorneys’ fees, pursuant to 42 U.S.C. §§ 1988 and 12205.
Defendants oppose Plaintiffs’ Motion for a Preliminary Injunction and deny all
liability. (Docs. 15, 38.) Defendants contend that Plaintiffs have not suffered, nor are
they likely to suffer, adverse health effects due to the conditions of confinement at
Angola’s death row facility. Defendants further contend that they have not violated
Plaintiffs’ rights under the ADA, ADAAA, or Rehabilitation Act. Thus, Defendants
request that the Court deny Plaintiffs’ motion, rule in Defendants’ favor, and deny
Plaintiffs all requested relief.
would go into some cooler setting. . . . I derive[d] that based on the [National Oceanic and Atmospheric Administration] charts, as well as the literature, which I have at least five or six articles behind that statement, that show this sort of a U-shape that when it’s 88, 90 degrees, the morbidity and mortality from heat rises exponentially. And those are all [in] peer review scientific articles. Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013. 9 At the conclusion of the trial on the merits, the Court denied Plaintiffs’ request that the Court enjoin Defendants from retaliating against Plaintiffs. Trial Transcript, Aug. 7, 2013. Accordingly, this request for injunctive relief was denied, as Plaintiffs failed to present evidence that Defendants were likely to retaliate against them.
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B. Procedural History The instant litigation was filed on June 10, 2013. (Doc. 1.) Eight days later, Plaintiffs filed a Motion for a Preliminary Injunction. (Doc. 12.) On July 2, 2013, Plaintiffs’ Motion for a Preliminary Injunction was heard with oral argument. (Doc. 24.) After considering the parties’ arguments, the Court determined that it was necessary to obtain current, accurate temperature, humidity, and heat index data from Angola’s death row facility before ruling on Plaintiffs’ motion. Accordingly, the Court deferred its ruling, pending the collection of such data by a neutral third-party expert. (Doc. 24.) The Court also issued a scheduling order, and set the trial on the merits to begin on August 5, 2013. (Docs. 24, 28.) Subsequently, the Court ordered the parties to retain a neutral third-party expert to install the necessary equipment, and record, collect, and disseminate the required data, beginning on July 15 and ending on August 5, 2013. (Doc. 36.) From August 5 through August 7, 2013, the Court conducted a hearing on Plaintiffs’ Motion for a Preliminary Injunction and the trial on the merits. Fed.R.Civ.P. 65(a)(2). During the trial, the parties jointly submitted the temperature, heat index, and humidity data collected and analyzed by the neutral third-party expert, United States Risk Management, L.L.C. (“USRM”), to the Court. During the trial, the parties also presented testimonial evidence regarding the conditions at Angola’s death row facility, and Plaintiffs’ underlying medical conditions and medications. Following the trial, the undersigned toured the death row facility and observed the conditions first-hand. As a result, the Court makes the following
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credibility findings, findings of fact, and conclusions of law. IV. CREDIBILITY FINDINGS 1. “In a non-jury trial, credibility choices and the resolution of conflicting testimony are the province of the judge, subject only to Rule 52(a)’s clearly erroneous standard.” Justiss Oil, Co., Inc. v. Kerr-McGee Refining Corp., 75 F.3d 1057, 1067 (5th Cir. 1996) (citation omitted); Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir. 1995) (“The trial judge’s ‘unique perspective to evaluate the witnesses and to consider the entire context of the evidence must be respected.’”) (citation omitted). 2. In making its findings of fact, the undersigned relied on the parties’ written submissions, the oral testimony presented at trial, and the evidence introduced at trial. Due to the number of disputed facts, it was necessary to consider the demeanor of each witness, his or her interests in the case, and the internal consistency of his or her testimony. See Justiss Oil, 75 F.3d at 1067. 3. The following are the Court’s credibility findings as to Defendant Norwood. 4. On July 15, 2013 at 4:45 p.m., Defendant Norwood issued an email to all of the death row supervisors regarding the monitors that were installed in the death row tiers by USRM. Norwood’s email ordered the following:
In order to ensure accurate and consistent temperature recording, all fans and windows are not to be adjusted in any manner. In addition, no offender and/or employee is to tamper with the recording devices placed on each tier. Only authorized persons will be allowed inside the cells with the recording devices. 5. Despite Norwood’s issuance of the hold order, Defendants installed awnings over the windows in tiers C and G on or about July 26, 2013. Such awnings remained on
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the windows from that date until the end of the data collection period. Defendants also

attempted to wet and/or mist the ceiling and/or outside walls of certain housing tiers

using water hoses. Defendants took such actions without seeking the permission of the

Court.

6. When asked by counsel for Plaintiffs about her understanding as to the purpose

of the data collection, Norwood testified as follows:

BY MR. VORA:

Ms. Norwood, what was your understanding as to why USRM was installing those monitors?

BY MS. NORWOOD:

Because the Judge wants a fair and impartial, objective reading of the temperatures.

BY MR. VORA:

And you understood that it was important for you to make sure that he did get fair and impartial readings of the temperatures inside of the death row tiers, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

In fact, you understood it and you even advised the other death row supervisors to ensure that the correctional officers also understood that they were to ensure that the Judge received fair and impartial numbers for the USRM monitors, correct?

BY MS. NORWOOD: Yes.

. . .

BY MR. VORA:

The reason that you asked for all the fans and windows not to be adjusted in any manner was to ensure, in your words, accurate and consistent temperature recordings, correct?

BY MS. NORWOOD: Yes.

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Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

7. Later, Norwood testified that she understood that: (1) the data was being

collected pursuant to a court order; (2) she had an obligation to obey the Court’s order;

and (3) she had an obligation not to engage in any actions that could possibly interfere

with the collection of such data.

BY MR. VORA:

And you understand that the USRM data was also being collected pursuant to the Court’s order, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And you understood that you had a duty to obey the Court’s order and to not engage in any action that might interfere with the Court’s collection of that data, correct?

BY MS. NORWOOD: Yes.

. . .

BY MR. VORA:

You understood that the Court wanted accurate and consistent temperature recordings, correct?

BY MS. NORWOOD: Yes.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

8. Despite this testimony, Norwood proceeded to testify that it “didn’t occur” to her

that Defendants’ installation of window awnings and use of “soaker” hoses might

interfere with the data collection. Trial Transcript, Testimony of Angelia Norwood,

Aug. 5, 2013.

BY MR. VORA:

. . . [D]id it ever cross your mind that the awnings might interfere with this Court’s order that the

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temperature be accurately consistently recorded and collected?

BY MS. NORWOOD: No, it did not.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

9. Norwood further added that she did not see a problem with Defendants’

installation of the awnings or use of the “soaker” hoses. Thus, she did not question her

superiors, nor did she attempt to prevent the installation or use of such devices, after

Defendant Cain ordered the installation and use of such.

10. Norwood’s credibility was further undermined by her testimony that it “didn’t

occur” to her that Defendants’ installation and use of such devices was inconsistent

with her July 15, 2013 email. Trial Transcript, Testimony of Angelia Norwood, Aug.

5, 2013.

11. When questioned by the Court, Norwood testified as follows:

BY THE COURT:

. . . it didn’t dawn on you that [Defendants’] activity was completely inconsistent with your email, the message in your email? . . . and now you are testifying - you’re telling the Court that somehow you didn’t think there was any problem with the installation, even after you issued this email message to all [of] the supervisors on death row? You saw nothing wrong, no problem with the installation of the awnings? You saw no problem with the use of the misters or soaker hoses or anything else? Is that what you are telling me?

BY MS. NORWOOD: Yes, sir. It is.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

12. When further questioned by the Court, Norwood testified that she did not

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believe that the awnings or “soaker” hoses would affect the temperature readings.

13. That testimony, however, was wholly inconsistent with Norwood’s later

testimony, in which she admitted that the purpose of the awnings and “soaker” hoses

was to attempt to lower the temperatures inside the death row housing tiers:

BY MR. VORA:

Why were the awnings installed on the death row tiers?

BY MS. NORWOOD:

To see if it would make a difference as far as providing shade over the windows, to see if it would cool - to see if it would make a difference, as far as the temperature, to bring it down.

. . .

BY MR. VORA:

Are you ever in a position to ask Warden Venoit questions?

BY MS. NORWOOD: Yes.

BY MR. VORA:

Did you ask him whether installing soaker hoses would affect the gathering of the data consistently and accurately pursuant to this Court’s order?

BY MS. NORWOOD: Not in so many words.

BY MR. VORA:

Did you ask him in any words?

BY MS. NORWOOD: Yes.

BY MR. VORA:

What did you ask him?

BY MS. NORWOOD:

I asked him if he seriously thought that wetting the outside of that building would impact the interior temperature.

BY MR. VORA:

Why did you ask him about impacting the interior temperature, but you didn’t ask him

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about whether or not that would be consistent with this Court’s order that accurate and consistent data be recorded?

BY MS. NORWOOD: It didn’t occur to me.

. . .

BY MR. VORA:

But your understanding as to why any of these actions with respect to soaker hoses or awnings, your understanding was that it was in order to further the settlement, correct?

BY MS. NORWOOD: No.

BY MR. VORA:

What was your understanding as to why that was happening?

BY MS. NORWOOD:

My understanding was to - to see if there was anything that would work to reduce the temperature.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

14. As highlighted above, Norwood’s testimony was illogical and riddled with

contradictions and inconsistencies. For example, despite instructing her subordinates

to not tamper with the tier windows “to ensure accurate and consistent temperature

recording[s],” Norwood attempted to convince the Court that it “didn’t occur” to her

that Defendants’ installation of the window awnings and use of “soaker” hoses may

interfere with the data collection.

15. In another example, Norwood testified that she understood that the purpose of

the twenty-one day data collection period was to collect accurate and consistent data.

Yet, she testified that she never questioned Defendants’ attempts to alter the

temperature, and thus, the data.

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16. In another example, despite testifying that it “didn’t occur” to her that Defendants’ actions may alter the temperature, and thus, the data, Norwood subsequently testified that the purpose of the window awnings and “soaker” hoses was to alter the temperature inside the death row tiers. 17. In sum, the Court finds that Norwood’s testimony on this issue lacked the ring of truth. Accordingly, this Court does not consider Norwood to be a credible witness, particularly as it relates to Defendants’ actions during the data collection period. Accordingly, Norwood’s testimony regarding Defendants’ actions during the data collection period were not relied on by the undersigned. V. FINDINGS OF FACT
The following findings of fact are uncontroverted or supported by the evidence in the record. Where a particular fact was controverted, the Court weighed the evidence and determined that the evidence presented by the party supporting that fact was more persuasive.
A. Angola’s Death Row 1. In 2006, the Louisiana Department of Public Safety and Corrections constructed a new facility at Angola to house inmates who have been sentenced to death (“death row” or “death row facility”). The 25,000 square foot death row facility features four housing wings, each of which contains two housing tiers; (2) administrative offices; (3) visitation rooms; (4) a medical clinic; (5) a dental clinic; (6) a control center where the correctional officers are stationed; and (7) an execution chamber. Air conditioning is provided in the administrative offices, visitation rooms, medical clinic, dental clinic,
12
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control center, and execution chamber. Air conditioning is not provided in the tiers where the inmates are housed. 2. Each of the four housing wings extend from the control center like spokes on a wheel. Each wing contains two housing tiers, for a total of eight tiers. Each tier is assigned a letter name: A, B, C, D, E, F, G, and H. Currently, only tiers A, B, C, F, G, and H house death row inmates. 3. Between the housing tiers, which sit back-to-back, are a series of pipes, in which are encased the plumbing, electrical wires, and duct work for the entire wing. 4. Each tier contains between twelve and sixteen cells, which house one inmate each, and a tier walkway. Tiers A, B, G, and H contain sixteen cells. Tier C contains twelve cells. Tier F contains fourteen cells. 5. The ceiling, floor, and walls of each housing tier are made of concrete. Similarly, the ceiling, floor, and walls of each inmate cell are made of concrete. 6. Each inmate cell is separated from the tier walkway by metal security bars. 7. Approximately nine feet across from the security bars are louver windows. The record is unclear as to how many windows are in each housing tier. However, the record indicates that each window measures approximately two feet wide by four feet tall. 8. Each louver window is comprised of a screen and a series of translucent, sloping, overlapping blades or slats that may be adjusted to admit varying degrees of air or
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light.10 Like most louver windows, the windows do not open in the traditional method. Rather, to open the window, one must tilt or adjust the horizontal louvers by using a handle. The maximum degree to which the louvers may be tilted is approximately forty-five degrees. 9. Above the windows are non-oscillating mounted fans that measure thirty inches in width.11 Each fan is shared by two inmates (i.e., the fan services two cells).12 The uncontroverted testimony at trial was that the mounted fans were not a part of the original construction. Rather, they were added to the death row tiers at a later date. 10. Death row inmates are required to remain in their cells twenty-three hours a day. 11. Each cell includes a sink, mirror, toilet, bed, desk, and chair. There are no windows or fans inside the cells. Rather, each cell contains a vent, measuring approximately six inches by eight inches, through which air from the window on the other side of the tier is drawn into the cell, and then into the vent, and then into the housing wing’s exhaust system, and then to the outside. 12. During the one hour period in which inmates are permitted to leave their cells, inmates may engage in outdoor recreation in the recreation cage13, or spend time in the tier walkway (“tier time”), and/or take a shower.
10 It is not clear from the record whether the louvers are made of plastic, glass, or another material. 11 The parties stipulated to the width of the death row fans. (Doc. 70.) 12 Mounted above the windows are televisions, which are also shared by two inmates (i.e., the television services two cells). 13 Inmates are permitted to engage in outdoor recreation only four times per week.
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13. Each tier has two shower stalls, one standard shower and one handicap accessible shower. Inmates are permitted one shower per day. The shower water temperature is maintained between 100 and 120 degrees.14 14. Each housing tier also has a portable, forty-eight ounce or sixty-eight ounce chest cooler (“ice chest”) where Angola staff place ice from the death row facility’s only ice machine. The ice chest is located in the tier walkway, at the entrance of the tier. Inmates are permitted access to the ice chest during their tier time only. Thus, during the twenty-three hours in which the inmates are confined to their cells, they do not have direct access to the ice chest. 15. Ice is not usually distributed to the inmates by the correctional officers. Indeed, the correctional officers are not required, and sometimes decline requests from the inmates, to distribute ice to the inmates.15 Rather, although they are not required to do so, the inmates who are on tier time usually distribute ice to the inmates who are confined to their cells. As a result, the inmates who are confined to their cells must rely on other inmates to distribute ice to them during each respective inmate’s tier time. 16. If an inmate chooses to engage in outdoor recreation rather than tier time, or refuses to distribute ice to inmates who are confined to their cell, then the confined inmates do not receive ice during that hour. Further, if an inmate exhibits habits that
14 The uncontroverted testimony at trial is that the shower water temperature is required to range between 100 and 120 degrees to promote hygienic practices. 15 During the trial, Defendant Norwood testified that “offender orderlies who are assigned to work death row” “are allowed” to distribute ice to the death row inmates, but only “if it is asked of them” by a correctional officer. Trial Transcript, Testimony of Angelia Norwood, Aug. 7, 2013.
15
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the other inmates consider to be unsanitary, the other inmates will not ask such inmate to distribute ice during his tier time. As a result, inmates who are confined to their cells do not receive ice during that hour, unless the correctional officers agree to provide it. 17. Inmates also do not have access to the ice chest during the overnight hours, during which the death row tiers are locked down.16 Further, it is uncontroverted that, over the course of a day, the ice in the ice chests, as well as the ice in the facilities’ only ice machine, frequently runs out.17 18. While Angola’s death row has a facility-wide heating system, none of the housing wings include a mechanical cooling system by which the dry bulb18 (i.e. ambient temperature) (“temperature”), humidity level19, or heat index20 can be lowered.
16 The uncontroverted testimony at trial was that the housing tiers are placed on lock down beginning at 10:30 or 11:00 p.m. It is not clear from the record what time the housing tiers are re-opened each morning. 17 During the Court’s site visit, Defendants contended that when the ice in the death row facility’s only ice machine runs out, the correctional officers retrieve ice from the ice machines in a nearby housing unit. 18 The dry bulb temperature is the temperature indicated by a dry-bulb thermometer that is the actual temperature of the air. Merriam-Webster Dictionary (11th ed. 2009). 19 Relative humidity is a dimensionless ratio, expressed in percent, of the amount of atmospheric moisture present relative to the amount that would be present if the air were saturated. National Weather Service Glossary, http://forecast.weather.gov/glossary.php (last visited Dec. 17, 2013) [hereinafter “NWS Glossary”]. 20 The heat index, or the “apparent temperature,” is an accurate measure of how hot it really feels when relative humidity is factored with the actual air temperature. NWS Glossary, supra note 19.
16
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19. It is uncontroverted that the housing wings were designed without a mechanical

cooling system. Instead, each wing features a ventilation system that consists of the

above-mentioned windows and cell vents, as testified to by witness Frank Thompson.21

BY MS. COMPA:

Is there any mechanism on the death row tiers to lower the temperature or humidity?

BY MR. THOMPSON: No. Just ventilation.

BY MS. COMPA:

What is the relationship between the temperature and the humidity outside and the temperature and humidity inside the death row tiers?

BY MR. THOMPSON:

The ventilation brings the air in from the back of the cells through the windows, across the across the way - from the windows into the exhaust grill that’s in the back of the cell. So, it just brings it in from the outside. So basically, you’re using the outside air to cool or ventilate the space.

Trial Transcript, Testimony of Frank Thompson, Aug. 5, 2013.

20. It is also uncontroverted that the ventilation system does not reduce the

temperature, humidity level, or heat index in the housing tiers. Thus, there is no

system that will lower or limit the temperature, humidity level, or heat index in the

tiers.

BY MS. COMPA:

And would it be any cooler inside than it is outside?

BY MR. THOMPSON:

No. You would reach about the temperature in the shade would be your goal.

21 During the trial, Thompson testified that his firm, Thompson, Luke & Associates, oversaw the construction of the death row facility.
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BY MS. COMPA:

And humidity wise, is that also true?

BY MR. THOMPSON: Humidity is similar.

BY MS. COMPA:

And, to your knowledge, is there an upper limit to how hot it can become on the death row tiers temperature wise?

BY MR. THOMPSON: It’s subject to what’s outside, the outside temperature.

Trial Transcript, Testimony of Frank Thompson, Aug. 5, 2013.

B. Plaintiff Elzie Ball

21. Plaintiff Ball is sixty years old. He has been on death row for sixteen years.

Currently, Ball lives in tier H, cell 5.22

22. It is uncontroverted that Ball suffers from hypertension, diabetes, and obesity.

To treat his hypertension and diabetes, Ball takes a variety of medications that make

him more susceptible to heat-related illness.23

23. It is also uncontroverted that Ball’s blood pressure is uncontrolled, and that it

spikes during the summer months. It is further uncontroverted that Defendants’ staff

physician, Dr. Hal David Macmurdo, M.D. (“Macmurdo”) is of the opinion that“[s]ooner

or later” Ball is “going to stroke out.” Trial Transcript, Testimony of Elzie Ball, Aug.

5, 2013.

22 Ball testified that he has also lived in tiers C, F, and G.
23 Specifically, Ball takes the following medications on a daily basis: Insulin, Glyburide (brand name: Micronase®), Meteformin Hydrochloride, Simvastatin (brand name: Zocor®), Amlodipine (brand name: Norvasc®), Clonidine (brand name: Catapres®), Losartan Potassium (brand name: Cozaar®), Furosemide (brand name: Lasix®), and Atenolol (brand name: Tenormin®). Plaintiffs’ expert, Dr. Susan Vassallo, M.D.’s uncontroverted testimony at trial was that Plaintiffs’ medications “prevent their ability to respond to heat.” As it relates to Ball, Dr. Vassallo testified that his medication “impairs the ability of the body to cool.” Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.
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24. During the trial, Ball also testified that the heat conditions in death row cause him to experience profuse sweating, swelling of his joints, hands, ankles, and keloids24, tingling in his hands and feet, dizziness, lightheadedness, and headaches. Ball further testified that it is difficult to sleep at night due to the heat in the housing tier. 25. According to Ball, he copes with the heat by drinking water, lying on the cell floor, creating “cool towels” by wetting his towels or wrapping them in ice, and taking off his shirt. 26. Ball testified that he does not have direct access to the ice chest during the twenty-three hours in which he is confined his cell, and that he is dependent on other inmates, who are on their tier time, to distribute ice to him. 27. Ball also testified that the lukewarm sink water, warm showers, and fans do not provide significant relief from the heat. 28. Ball’s uncontroverted testimony was that the mounted fans occasionally break, and are not always immediately fixed by Angola’s maintenance staff.
C. Plaintiff Nathaniel Code 29. Plaintiff Code is fifty-seven years old. He has been on death row for twenty-two years. Code currently lives in tier H, cell 16.25
24 Ball testified that he has keloid scars that become inflamed and painful due to the heat. 25 Code testified that he also lived in tier F and tier C.
19
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30. It is uncontroverted that Code suffers from hypertension, obesity and hepatitis. To treat his hypertension, Code takes a number of medications that make him more susceptible to heat-related illness.26 31. During the trial, Code testified that during the summer months he “languishes” in the heat from sunrise until approximately 2:00 a.m. when the tier cools down. According to Code, he is subjected to direct sunlight through the window across from his cell, which prevents him from getting relief from the heat. 32. During the trial, Code testified that he avoids overheating by lying as still as possible. However, he must avoid lying in one position for too long to prevent that part of his body from getting too hot. 33. Code also testified that the heat causes him to sweat profusely, feel dizzy and light-headed, and experience headaches. He further testified that the heat conditions disturb his sleep patterns and disorient him, causing him to forget where he placed objects inside his cell. The heat conditions also cause Code to experience a “wave” over his body, which he described as a tingling sensation that moves from his feet to his head. 34. Code testified that he copes with the heat by wearing light clothing, drinking water, and creating “cool towels” by wrapping ice into his towels.
26 Specifically, Code takes the following medications on a daily basis: Losartan Potassium (brand name: Cozaar®), Hydrochlorothiazide, and Amlodipine (brand name: Norvasc®). Dr. Vassallo’s uncontroverted testimony at trial was that Plaintiffs’ medications “prevent their ability to respond to heat.” As it relates to Code, Dr. Vassallo testified that his medications also impair his body’s ability to cool.” Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.
20
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35. Code testified that he does not have direct access to the ice chest during the

twenty-three hours in which he is confined to his cell, and that he is dependent on

other inmates, who are on their tier time, to distribute ice to him.

36. According to Code, the lukewarm sink water, warm showers, and fans do not

provide adequate relief from the heat.

37. He further testified that the vent in his cell does not work, and that Angola’s

maintenance staff has yet to repair it. This testimony was not contested by

Defendants.

38. According to Code, the only time he has access to air conditioned areas is when

he has an attorney visit, personal visit, or when he goes to the doctor. He testified that

he goes to the doctor or has an attorney or personal visit only once every two months:

BY MS. MONTAGNES: . . . Any visits outside of the tier. How long between vists?

BY MR. CODE:

Oh, okay. It’s at least two months between any of those. Even if I get some of all of them, some personal visits, doctor visits, and attorney visits, it’s at least two months between them. I can’t think of any of them being close[r] than two months.

Trial Transcript, Testimony of Nathaniel Code, Aug. 5, 2013.

D. Plaintiff James Magee

39. Plaintiff Magee is thirty-five years old. He has been on death row for three

years. Magee lives in tier A, cell 13.27

27 Magee also testified that he has also lived in tier C. 21
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40. It is uncontroverted that Magee suffers from hypertension, high cholesterol, and depression. To treat his hypertension, high cholesterol, and depression, Magee takes a variety of medications that make him more susceptible to heat-related illnesses.28 41. During the trial, Magee described his housing conditions as a “sauna” in the morning and an “oven” in the afternoon. According to Magee, during the summer months, he is often hot and sweaty, experiences headaches, nausea, dizziness, lightheadedness, and has difficulty breathing and sleeping. 42. Magee testified that he tries to cope with the heat by wetting his t-shirt with the water from his cell sink, standing close to cell bars to get air from the mounted fan, and creating “cool towels.” He further testified that he attempts to cool down his cell by wiping the cell walls and floor with “cool towels.” 43. Magee testified that he does not have direct access to the ice chest during the twenty-three hours in which he is confined to his cell, and that he is dependent on other inmates, who are on their tier time, to distribute ice to him. 44. Magee further testified that the lukewarm sink water, warm showers, and fans do not provide relief from the heat.
28 Specifically, Magee takes the following medications on a daily basis: Amlodipine (brand name: Norvasc®), Clonidine (brand name: Catapres®), Cholestyramine, Fluoxetine (brand name: Prozac®) and Mirtazapine (brand name: Remeron®). Dr. Vassallo’s uncontroverted testimony at trial was that Plaintiffs’ medications “prevent their ability to respond to heat.” As it relates to Magee, Dr. Vassallo testified that his medication “affects his body’s ability to adjust to and tolerate the heat.” Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.
22
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E. The Data Collected by United States Risk Management 45. Neither the United States Court of Appeals for the Fifth Circuit, nor any other federal court of appeals, has established a constitutionally precise temperature, humidity level, or heat index that may constitute cruel and unusual punishment, in violation of the Eighth Amendment. Thus, this Court, like other courts, is left to establish the temperature, humidity level, heat index, and/or physical and/or medical conditions at which there has been a violation of Plaintiffs’ constitutional rights. Accordingly, the Court required the parties’ to retain a neutral third-party expert to collect, analyze, and disseminate temperature, humidity, and heat index data for a period of twenty-one days. The following is a summary of the data, which shall serve as the foundation of the Court’s conclusions of law.
1. The Data Collection Period 46. On July 12, 2013, the Court ordered the parties to retain neutral third-party expert, United States Risk Management, L.L.C. (“USRM”) to collect temperature and humidity data, and calculate the heat index in the death row tiers for exactly twentyone days.29 (Docs. 36, 24.) Immediately thereafter, USRM installed seven 3M QUESTempE 46 Waterless Heat Stress Monitors in tiers A, B, C, F, G, and H. USRM also installed an external weather station outside of the death row tiers to capture
29 The Court also ordered the parties to collect the wetbulb globe temperature. The wetbulb globe temperature (“WBGT”) is a measure of heat stress in direct sunlight which takes into account temperature, humidity, wind speed, sun angle and cloud cover (solar radiation). This differs from the heat index, which takes into consideration temperature and humidity and is calculated for shady areas. Military agencies and the Occupational Safety Health Administration use the WBGT as a guide to managing workload in direct sunlight. WetBulb Globe Temperature, National Weather Service Weather Forecast Office, http://www.srh.noaa.gov/tsa/?n=wbgt (last visited Dec. 17, 2013). Although wetbulb globe temperature data was provided to the Court, it was not used in the Court’s analysis.
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external “weather link” data. The USRM monitors collected data inside each of the six tiers, and outside, once per hour from July 15, 2013 through August 5, 2013 (“the data collection period”). 47. The data collected by USRM established that while the temperature, humidity, and heat index in each tier varied from day-to-day, the heat index in all of the tiers exceeded 104 degrees30 at various times during the data collection period. 48. Further, the data collected by USRM established that the temperature, humidity, and heat index inside the death row tiers were, more often than not, the same or higher than the temperature, humidity, and heat index recorded outside of the death row tiers.
2. Tier A 49. The data collected in tier A proved to be slightly less extreme than the other tiers. However, the temperature, humidity, and heat index data recorded in tier A nonetheless presented an alarming trend. 50. The first reading was taken on July 15, 2013 at 2:45 p.m.31 At that time, the monitor recorded a temperature of 84 degrees and a heat index of 89 degrees.32
30 All temperature and heat index measurements herein are presented in degrees Fahrenheit. 31 One monitor was installed in cell 11 of tier A. 32 Hereinafter, “heat indices” shall refer to multiple heat index recordings. The Court also notes that some temperatures and heat indices were recorded and produced as round numbers, while other were recorded as numbers with one or two decimal points. All temperatures and heat indices presented herein are described in the same manner as produced by USRM.
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51. During the data collection period, the lowest recorded temperature was 80.42 degrees33 while the highest recorded temperature was 90.68 degrees.34 In contrast, the lowest recorded heat index was 84.2 degrees35 while the highest recorded heat index was 104.54 degrees.36 52. On each day of the collection period, the heat index rose to 92 degrees or higher. In other words, on every single day during the collection period, inmates housed in tier A were subjected to heat indices in the National Oceanic and Atmospheric Administration’s (“NOAA”) National Weather Service’s (“NWS”) “extreme caution” zone or higher.37 See Exhibit 1. 53. Notably, the heat index in tier A was recorded at 100 degrees or higher on five days: July 29, July 30, August 2, August 3, and August 4, 2013. Such heat indices are in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 54. Data from tier A also showed high heat indices for extended periods of time. For example, on August 3, 2013, the heat index remained between 99.5 and 102.02 degrees for thirteen hours, or from 9:13 a.m. to 10:13 p.m.
33 This temperature was recorded on July 20, 2013 at 5:17 a.m. 34 This temperature was recorded on August 4, 2013 from 4:59 to 6:59 p.m. 35 This heat index was also recorded on July 20, 2013 at 5:17 a.m. 36 This heat index was recorded on August 2, 2013 at 7:13 p.m. 37 The NWS defines heat index as “how hot weather ‘feels’ to the body.” Heat: A Major Killer, NWS Office of Climate, Water, and Weather Services, http://www.nws.noaa.gov/om/heat/index.shtml (last visited Dec. 17, 2013) [hereinafter Heat: A Major Killer]. The NWS’s Heat Index Chart uses relative humidity and air temperature to produce the “apparent temperature” or the temperature the body “feels.” According to the NWS, “[t]hese values are for shady location only. Exposure to full sunshine can increase heat index values by up to 15 [Fahrenheit]. Also, strong winds, particularly with very hot, dry air, can be extremely hazardous as the wind adds heat to the body.” Id.
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55. As noted above, the highest heat index (104.54 degrees) was recorded on August 2, 2013. On that day, from 11:13 a.m. to 11:13 p.m., the following heat indices were consecutively recorded: 99.5, 100.4, 100.94, 101.48, 102.92, 100.4, 101.84, 102.92, 104.54, 104, 103.46, 101.48, 101.3, all of which are in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 56. In sum, based on the data collected in tier A, the Court concludes that the inmates housed in this tier were consistently subjected to heat indices in the NWS’s “extreme caution” and “danger” zones, which, according to the NWS, “may cause increasingly severe heat disorders with continued exposure or physical activity.”38 See Exhibit 1.
3. Tier B 57. The data collected in tier B reflected higher temperatures and heat indices than in tier A. The first reading in tier B was taken on July 15, 2013 at 2:56 p.m.39 At that time, the recorded temperature was 83.6 degrees and the heat index was 90 degrees. 58. During the data collection period, the lowest recorded temperature was 79.52 degrees40 while the highest recorded temperature was 90.68 degrees.41 In contrast, the
38 Heat: A Major Killer, supra note 37. 39 One monitor was installed in cell 8 of tier B. 40 This temperature was recorded on July 19, 2013 at 6:03 a.m. and again at 7:03 a.m., and on July 20, 2013 a 7:03 a.m. 41 This temperature was recorded on August 2, 2013 at 4:50 p.m. and again at 5:50 p.m., and again on August 4, 2013 at 6:04 p.m.
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lowest recorded heat index was 83.84 degrees42 while the highest recorded heat index was 109.94 degrees.43 59. On each day of the collection period, the heat index rose to 92 degrees or higher. In other words, on every single day during the collection period, inmates housed in tier B were subjected to heat indices in the NWS’s “extreme caution” zone or higher. See Exhibit 1. 60. Indeed, the heat index in tier B was recorded at 100 degrees or higher on ten days: July 22, July 24, July 28, July 30, July 31, August 1, August 2, August 3, August 4, and August 5, 2013. Such heat indices are in the NWS’s “extreme caution” and “danger” zones. See Exhibit 1. 61. High heat indices for extended periods of time were typical in tier B. For example, on July 29, 2013, the heat index remained between 98.24 and 102.2 degrees for eights hours, or from 1:23 p.m. to 9:23 p.m. On July 30, 2013, the heat index remained between 99.14 and 103.28 degrees for nine hours, or from 11:23 a.m. to 8:51 p.m. On August 1, 2013, the heat index remained between 100.4 and 103.82 degrees for eleven hours, or from 11:51 a.m. to 10:51 p.m. On August 3, the heat index remained between 100.4 and 105.08 degrees for thirteen hours, or from 8:50 a.m. to 9:50 p.m. 62. As noted above, the highest heat index (109.94 degrees) was recorded on August 2, 2013. Indeed, one of the longest periods of heat indices reaching 100 degrees or
42 This heat index was recorded on July 26, 2013 at 6:43 p.m. 43 This heat index was recorded on August 2, 2013 at 7:50 p.m.
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above was recorded on that day. Specifically, from 11:50 a.m. to 11:50 p.m., the following heat indices were consecutively recorded: 103.82; 104.54; 101.48; 105.8; 102.92; 102.92; 105.08; 107.42; 109.94; 104.36; 102.2; 102.2; and 103.28. 63. Based on the data collected in tier B, the Court concludes that the inmates housed in this tier were consistently, and for long periods of time over the course of multiple days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1.
4. Tier C 64. The data collected in tier C reflected higher temperatures and heat indices than in any of the other tiers. The first reading was taken on July 15, 2013 at 3:05 p.m.44 At that time, the recorded temperature was 86.4 degrees and the heat index was 92 degrees. 65. During the data collection period, the lowest recorded temperature was 85.1 degrees45 while the highest recorded temperature was 92.12 degrees.46 In contrast, the lowest recorded heat index was 89.96 degrees47 while the highest recorded heat index was 110.3 degrees48, which is well within the NWS’s “danger” zone. See Exhibit 1.
44 One monitor was installed in cell 11 of tier C. 45 This temperature was recorded on July 20, 2013 at 6:34 a.m., and again at 7:34 a.m. 46 This temperature was recorded on August 4, 2013 at 6:22 p.m., and again at 7:22 p.m. 47 This heat index was also recorded on July 20, 2013 at 4:34 a.m. 48 This heat index was recorded on August 2, 2013 at 7:38 p.m., and again at 8:38 p.m.
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66. The data shows that the heat index in tier C rose to, and remained above, 100 degrees for two or more hours on thirteen of the twenty-one days in the collection period. 67. The Court also notes that, despite Defendants’ installation of awnings over the windows in tier C on or about July 26, 2013, the most alarming heat index figures were recorded between July 29 and August 5, 2013. For example, on July 29, the heat index remained between 99.32 and 103.46 degrees for ten hours, or from 1:16 p.m. to 11:16 p.m. On July 30, the heat index remained between 100.4 and 107.42 degrees for ten hours, or from 1:16 p.m. to 11:58 p.m. On August 1, 2013, the heat index remained between 100.04 and 106.88 degrees for fifteen consecutive hours, or from 8:58 a.m. to 11:58 p.m. The Court notes that, but for the awnings installed by Defendants over the windows in tier C, the heat indices recorded in tier C may have been higher. 68. As noted above, the highest heat index (110.3 degrees) was recorded on August 2, 2013. On that day, the heat index remained at 100 degrees or above for fifteen hours, or from 8:58 a.m. to 11:38 p.m. 69. Further, the data shows that the heat index in tier C did not drop below 100 degrees from August 3 through August 5, 2013. For example, on August 3, 2013, from 12:38 a.m. to 11:38 p.m., the following heat indices were consecutively recorded: 106.16, 106.16, 105.08, 104.54, 105.08, 104.54, 104, 102.56, 105.8, 105.8, 105.8, 104, 102.92, 102.56, 105.08, 104.54, 105.08, 107.24, 106.52, 108.32, 109.76, 105.62, 105.08, and 104.
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70. This 100+ degree heat index trend continued until the last reading on August 5, 2013 at 12:22 p.m. 71. By comparison, on August 3, 2013 from 12:30 a.m. to 11:30 p.m., the following heat indices were recorded by the outside weather monitor: 93.4, 92.4, 90.6, 88.5, 87.6, 86.4, 82.9, 83.6, 92.6, 98.4, 98.8, 104.3, 105.5, 105.2, 110.6, 110.8, 109.2, 109.5, 108.7, 104.7, 95.3, 89.3, 86.4, and 84.3. 72. This data established that there were multiple, consecutive hours during which inmates housed in tier C were subjected to heat indices up to twenty degrees higher than outside the housing tier. 73. Based on the data collected in tier C, the Court concludes that the inmates housed in this tier were consistently, and for long periods of time over the course of multiple days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. The Court also concludes that inmates housed in tier C were subjected to heat indices up to twenty degrees higher than the heat indices recorded outside the housing tier.
5. Tier F 74. The first reading in tier F was taken on July 15, 2013 at 3:14 p.m.49 At that time, the recorded temperature was 81.8 degrees and the heat index was 87 degrees.
49 One monitor was installed in cell 6 of tier F. 30
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75. During the data collection period, the lowest recorded temperature was 80.2 degrees50 while the highest recorded temperature was 91.04 degrees.51 In contrast, the lowest recorded heat index was 85 degrees52 while the highest recorded heat index was 106.16 degrees.53 76. On each day of the collection period, the heat index rose to 92 degrees or higher. In other words, on every single day during the collection period, inmates housed in tier F were subjected to heat indices in the NWS’s “extreme caution” zone or higher. See Exhibit 1. 77. Notably, the heat index in tier F was recorded at 100 degrees or higher on eight days: July 17, July 29, July 30, July 31, August 1, August 2, August 3, and August 4, 2013. Such heat indices are in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 78. Like the data collected from the other death row tiers, the data collected from tier F showed high heat indices for extended periods of time. For example, on August 1, 2013, the heat index remained between 100.4 and 105.62 degrees for eight hours, or from 2:15 p.m. to 10:15 p.m. On August 4, 2013, the heat index remained between 101.3 and 104.54 degrees for 8 hours, or from 12:17 p.m. to 7:17 p.m. On August 3,
50 This temperature was recorded on July 18, 2013 at 7:14 a.m. 51 This temperature was recorded on August 4, 2013 at 5:17 p.m. 52 This heat index was recorded on July 16, 2013 from 3:14 a.m. to 7:14 a.m., and again on July 18, 2013 from 4:14 a.m. to 7:14 a.m. 53 This heat index was recorded on August 2, 2013 at 7:32 p.m.
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2013, the heat index remained between 99.86 and 105.08 degrees for 12 hours, or from 9:32 a.m. to 9:32 p.m. 79. As noted above, the highest heat index (106.16 degrees) was recorded on August 2, 2013. The Court notes that one of the longest periods of heat indices reaching 100 degrees or above was also recorded on this day. Specifically, from 11:32 a.m. to 11:32 p.m., the following heat indices were consecutively recorded: 101.84, 102.74, 101.3, 103.46, 102.38, 100.94, 102.92, 102.92, 106.16, 103.82, 102.2, 101.3, 102.74. All of which are in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 80. Based on the data collected in tier F, the Court concludes that the inmates housed in this tier were consistently, and for long periods of time over the course of multiple days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1.
6. Tier G 81. In their submissions to the Court and during the trial on the merits, Plaintiffs argued that the heat indices in cells closest to the tier entrance are lower than the heat indices in cells at the rear of the tier, or furthest from the tier entrance. Thus, Plaintiffs allege that inmates who are assigned to cells at the rear of the tier are subjected to more extreme conditions of confinement than inmates who are assigned to cells that are close to the tier entrance. 82. To determine whether Plaintiffs’ allegations have merit, two monitors were placed in tier G: one approximately halfway down the tier in cell 8, and one at the very rear of the tier in cell 16.
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83. The data collected in both cells revealed an appreciable difference in the recorded temperatures and heat indices in cell 8 versus cell 16. 84. The first reading in cell 8 was taken on July 15, 2013 at 3:25 p.m. At that time, the recorded temperature was 86.4 degrees and the heat index was 91.4 degrees. For reasons that are unknown to the Court, the first reading was not taken in cell 16 until three days later, on July 18, 2013. 85. During the data collection period, the lowest recorded temperature in cell 8 was 80.06 degrees54 while the highest recorded temperature was 91.04 degrees.55 In contrast, the lowest recorded temperature in cell 16 was 85.46 degrees56 while the highest recorded temperature was 91.58 degrees.57 86. The lowest recorded heat index in cell 8 was 84.02 degrees58 while the highest recorded heat index was 107.42 degrees.59 In contrast, the lowest recorded heat index in cell 16 was 91.22 degrees60 while the highest recorded heat index was 110.3 degrees.61
54 This temperature was recorded on July 20, 2013 at 5:14 a.m. 55 This temperature was recorded on August 4, 2013 at 5:11 p.m., and again at 6:11 p.m. 56 This temperature was recorded on July 19, 2013 at 7:26 a.m. 57 This temperature was recorded on August 3, 2013 at 6:25 p.m., 7:25 p.m., and 8:25 p.m. This temperature was also recorded on August 4, 2013 at 5:13 p.m., 6:13 p.m., and 7:13 p.m. 58 This heat index was recorded on July 19, 2013 at 6:14 a.m. 59 This heat index was recorded on August 2, 2013 at 12:21 p.m. 60 This heat index was recorded on July 19, 2013 at 3:26 a.m. and 4:26 a.m. 61 This heat index was recorded on August 3, 2013 at 8:25 p.m.
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87. On each day of the collection period, the heat index rose to 93.2 degrees or higher in cell 8, and 96.44 degrees or higher in cell 16. In other words, on every single day during the collection period, inmates housed nearer to and furthest from the tier entrance were subjected to heat indices in the NWS’s “extreme caution” zone or higher. See Exhibit 1. 88. However, as noted below, the data shows consistently higher heat indices in cell 16, as compared to cell 8. 89. According to the data collected by USRM, the heat index rose to 100 degrees or above in cell 8 on twelve days: July 22, July 23, July 24, July 26, July 29, July 30, July 31, August 1, August 2, August 3, August 4, and August 5, 2013. 90. The data also established high heat indices for extended periods of time in cell 8. For example, on August 2, 2013, the heat index remained between 101.84 and 107.42 degrees for twelve hours, or from 11:21 a.m. to 11:21 p.m. In another example, on August 3, 2013, the heat index remained between 100.4 and 105.08 degrees for fourteen hours, or from 9:21 a.m. to 11:21 p.m. 91. Even more alarming, however, are the recorded heat indices further down the tier in cell 16. 92. In cell 16, the heat index was recorded at 100 degrees or higher on fifteen consecutive days: July 21, July 22, July 24, July 25, July 26, July 27, July 28, July 29, July 30, July 31, August 1, August 2, August 3, August 4, and August 5, 2013.62
62 For reasons unknown to the Court, no data was recorded in tier G, cell 16 on July 23, 2013. 34
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93. The data collected from cell 16 also shows high heat indices for extended periods of time. For example, on five consecutive days during the data recording period (August 1 - 5, 2013), the heat index did not dip below 99.14 degrees. In other words, inmates assigned to cells at the rear of tier G were subjected to heat indices of 99.14 degrees or above for 120 consecutive hours, while inmates housed in cells at the front of the tier experienced lower heat indices. 94. As noted above, the highest heat index in cell 16 (110.3 degrees) was recorded on August 3, 2013. Notably, one of the longest periods of heat indices reaching 100 degrees or above was also recorded on that day. Specifically, from 12:25 a.m. to 11:25 p.m., the following heat indices were consecutively recorded: 108.68, 107.96, 106.88, 106.16, 103.46, 102.92, 102.56, 103.46, 105.08, 106.34, 109.4, 105.8, 107.42, 104.54, 105.08, 103.46, 104, 104.54, 105.98, 107.24, 110.3, 106.88, 105.62, and 105.08. 95. By comparison, on August 3, 2013 from 12:30 a.m. to 11:30 p.m., the following heat indices were recorded by the outside weather monitor: 93.4, 92.4, 90.6, 88.5, 87.6, 86.4, 82.9, 83.6, 92.6, 98.4, 98.8, 104.3, 105.5, 105.2, 110.6, 110.8, 109.2, 109.5, 108.7, 104.7, 95.3, 89.3, 86.4, 84.3. 96. This data established that there were multiple, consecutive hours during which the inmates housed in cells at that rear of tier G were subjected to heat indices that were up to twenty degrees higher than the heat indices recorded outside of the death row facility. 97. Based on the data collected in tier G, the Court concludes that the inmates housed in this tier were consistently, and for long periods of time over the course of
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multiple days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. The Court notes that, but for the awnings installed by Defendants over the windows in tier G on or about July 26, 2013, such temperatures and heat index recordings may have been higher. 98. Based on the data collected in tier G, the Court further concludes that inmates who are housed in cells at the rear of the respective housing tiers, or furthest away from the tier entrance, are subjected to more extreme conditions of confinement than inmates who are housed in cells closer to the entrance of each respective tier.
7. Tier H 99. The data collected from tier H reveals slightly lower temperatures and heat indices than tiers C and G. However, as noted below, during the undersigned’s tour of tier H, the undersigned noted that the tier is partially shaded by another tier. 100. The first reading was taken in this tier on July 15, 2013 at 3:32 p.m.63 At that time, the recorded temperature was 82.1 degrees and the heat index was 87 degrees. 101. During the data collection period, the lowest recorded temperature was 78.26 degrees64 while the highest recorded temperature was 92.66 degrees.65 In contrast, the lowest recorded heat index was 81.5 degrees66 while the highest recorded heat index was 107.78 degrees.67
63 One monitor was installed in cell 8 of tier H. 64 This temperature was recorded on July 19, 2013 at 6:23 a.m. 65 This temperature was recorded on August 4, 2013 5:53 p.m. 66 This temperature was recorded on July 19, 2013 at 6:23 a.m. 67 This heat index was recorded on August 2, 2013 at 6:43 p.m.
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102. On each day of the collection period, the heat index rose to 90 degrees or higher. In other words, on every single day during the collection period, inmates housed in tier H were subjected to heat indices in the NWS’s “caution” or “very warm” zone (hereinafter “caution” zone) or higher. See Exhibit 1. 103. The data also shows that the heat index rose to 100 degrees or higher on seven consecutive days: July 29, July 30, July 31, August 1, August 2, August 3, and August 4, 2013. 104. The data further established high heat indices for extended periods of time. For example, on August 1, 2013, the heat index remained between 99.32 and 105.08 degrees for nine hours, or from 1:41 to 10:41 p.m. On August 3, 2013, the heat index remained between 99.5 and 104.54 degrees for nine hours, or from 1:43 to 10:43 p.m. 105. As noted above, the highest heat index (107.78 degrees) was recorded on August 2, 2013. Notably, one of the longest periods of heat indices reaching 100 degrees or above was also recorded on this day, and the following morning. Specifically, from 12:43 p.m. on August 2 to 1:43 a.m. on August 3, the following heat indices were consecutively recorded: 101.3, 100.94, 104, 104, 103.64, 105.44, 107.78, 107.42, 104.54, 102.92, 100.76, 102.2, 100.4, 100.4. Such heat indices fall squarely within the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 106. Although the data collected from tier H is less alarming than the data collected from tiers C and G, based on the data, the Court concludes that the inmates housed in this tier were also consistently, and for long periods of time over the course of multiple
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days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 107. In sum, the data collected by USRM during the data collection period unequivocally established that inmates housed in each of the death row tiers are consistently, and for long periods of time, subjected to high temperatures and heat indices in the NWS’s “caution,” “extreme caution,” and “danger” zones. See Exhibit 1. 108. The data also established that inmates in at least two of the tiers are frequently subjected to heat indices that are up to twenty degrees higher than the heat indices recorded outside the death row facility. 109. Further, the data established that inmates who are housed in cells at the rear of the respective housing tiers, or furthest away from the tier entrance, are subjected to more extreme conditions of confinement than inmates who are housed in cells closer to the entrance of each respective tier.
F. The Court’s Observation of the Death Row Tiers 110. On August 12, 2013 from approximately 2:15 p.m. to 3:00 p.m., the undersigned observed Angola’s death row facility, including the administrative offices, visitation rooms, control center, and housing tiers A, C, G, and H. Counsel for both parties, as well as Defendant Norwood, accompanied the undersigned during the site visit. 111. During the undersigned’s tour of the death row facility, which was conducted after the data collection period, the Court made factual observations which support the Court’s findings of fact.
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112. Approximately one and one half hour before the undersigned’s tour, Angola, Louisiana and the surrounding areas sustained thunderstorms and heavy rain. By 2:15 p.m., the thunderstorms and rain had ceased. However, the sky was densely overcast and the temperature had noticeably decreased from a high of 91 degrees at 12:42 p.m.68 113. During the site visit, the Court observed that despite the decreased outside temperature and overcast sky, the temperature inside the housing tiers was appreciably higher than the temperature outside. For example, according to Defendants’ mercury-in-glass thermometers69, the temperature in tiers A, C, G, and H were 88 degrees, 89 degrees, 94 degrees, and 89 degrees, respectively. However, weather data collected from the closest weather station indicates that the outside weather temperature was only 77 degrees at 2:00 p.m. 114. The Court also observed that tier H is shaded by one of the other housing tiers. 115. The Court also observed the windows, fans, and cell vents in tiers A, C, G, and H. In the Court’s observation, the windows, fans, and cell vents did not provide a cooling effect or relief from the heat conditions in the tier. 116. During the site visit, the undersigned detected the cool air that blew into the tiers from the central corridor each time a tier entrance was opened. The Court noted
68 According to a Climatological Report obtained from National Weather Service Forecast Office, the maximum temperature recorded at the Baton Rouge Regional Airport on August 12, 2013 was 91 degrees. That temperature was recorded at 12:42 p.m. Climatological Report (Daily), http://www.nws.noaa.gov/view/validProds.php?prod=CLI (last visited Aug. 13, 2013). 69 Each of Defendants’ mercury-in-glass thermometers were located at the rear of each tier, or on the wall furthest away from the tier entrance.
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that cool air could be detected for the few seconds that a tier entrance remained open, while standing near the entrance of the tier, but that the cool air could not be detected while standing at the rear of the tier. 117. While the Court did not attempt to measure the temperature of the cold and hot water from the in-cell faucets, the undersigned noted that the cold water was lukewarm to the touch. 118. The Court further observed that although each fan was positioned to be shared by two cells, the fans did not provide equal amounts of air flow to each cell. 119. The undersigned did not observe dirt, debris, or insects in the ice chests or in the water from the in-cell faucets. 120. The Court observed, however, that the walls of the housing tiers were hot to the touch, and that the security bars separating the cells from the tier walkway were very warm to the touch. VI. CONCLUSIONS OF LAW
A. 42 U.S.C. § 1983 1. “Section 1983 imposes liability on anyone who, under color of state law, deprives a person ‘of any rights, privileges, or immunities secured by the Constitution and laws.’ . . . [T]his provision [also] safeguards certain rights conferred by federal statutes.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Maine v. Thiboutot, 448 U.S. 1 (1980)). 2. Here, the gravamen of Plaintiffs’ Section 1983 claim is that Defendants have subjected them to cruel and unusual punishment, in violation of the Eighth
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Amendment to the United States Constitution, made applicable to the States “by

reason of the Due Process Clause of the Fourteenth Amendment.” Robinson v.

California, 370 U.S. 660, 675 (1962).

3. Specifically, Plaintiffs allege that by subjecting them to “extreme conditions of

confinement, specifically excessive heat, with full knowledge of the dangerousness of

those conditions, Defendants [ ] are acting and have acted with deliberate indifference

to Plaintiffs’ serious health and safety needs, in violation of their rights under the

Eighth and Fourteenth Amendments to the United States Constitution.” (Doc 1, ¶¶

12, 67-68.) 1.

The Eighth Amendment

4. The Eighth Amendment to the United States Constitution provides: “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII.

5. It is well settled that the United States Constitution does not require

comfortable prisons. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Rhodes v.

Chapman, 452 U.S. 337, 349 (1981). However, it is equally well established that

conditions of confinement “must not involve the wanton and unnecessary infliction of

pain.” Rhodes, 452 U.S. at 347.

6. The Eighth Amendment’s prohibition against cruel and unusual punishment

requires that prisoners be afforded “humane conditions of confinement,” including

adequate food, clothing, shelter, and medical care. Farmer, 511 U.S. at 832; Gates v.

Cook, 376 F.3d 323, 332 (5th Cir. 2004) (holding that a prison official’s obligation

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includes “ensur[ing] that inmates receive adequate food, clothing, shelter, and medical care,” as well as “reasonable measure[s] to ensure the safety of the inmates”). 7. Thus, “[t]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Gates, 376 F.3d at 332; Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“[C]onditions of confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need.”). 8. Such “conditions of confinement” that are subject to review include temperature conditions. Wilson, 501 U.S. at 303 (stating that “the temperature [a prisoner] is subjected to in his cell” is “a condition of his confinement”) (quotation marks omitted); Gates, 376 F.3d at 333 (same). 9. An Eighth Amendment claim has two components. Wilson, 501 U.S. at 298. 10. First, the deprivation alleged must be sufficiently serious. Wilson, 501 U.S. at 298. “[O]nly those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave” to constitute cruel and unusual punishment. Id. (quoting Rhodes, 452 U.S. at 347). 11. A court must measure a prison’s conditions against “‘the evolving standards of decency that mark the progress of a maturing society,’ and not the standards in effect during the time of the drafting of the Eighth Amendment.” Gates, 376 F.3d at 332-33 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). Further, the Supreme Court of the United States has noted that “the length of confinement cannot be ignored in
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deciding whether the confinement meets the constitutional standards. A filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks or months.” Hutto v. Finney, 437 U.S. 678, 686-87 (1978). 12. Second, the prison official must have acted with a sufficiently culpable state of mind. See Farmer, 511 U.S. at 838; Wilson, 501 U.S. at 305. In condition of confinement cases, the Court is required to determine if the prison official acted with deliberate indifference, which the Supreme Court has defined as knowing of and disregarding an excessive risk to inmate health or safety. Farmer, 511 U.S. at 836 (“It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.”). 13. Thus, to demonstrate that prison conditions violate the Eighth Amendment, an inmate must meet the following requirements: (1) an objective requirement showing that the condition is “so serious as to ‘deprive prisoners of the minimal civilized measure of life’s necessities,’ as when it denies the prisoner some basic human need;” and (2) a subjective requirement, which mandates a showing that prison officials have been “‘deliberately indifferent’ to inmate health or safety.” Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (citing Farmer, 511 U.S. at 834).
a. The Conditions of Confinement at Angola’s Death Row Constitute a Substantial Risk of Serious Harm to Plaintiffs
14. It is axiomatic that a prison official’s failure to provide inmates relief from extreme temperatures may constitute an Eighth Amendment violation. Wilson, 501
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U.S. at 304 (“low cell temperature at night combined with a failure to issue blankets” could constitute an Eighth Amendment violation); Smith v. Sullivan, 553 F.2d 373, 381 (5th Cir. 1977) (“If the proof shows the occurrence of extremes of temperature that are likely to be injurious to inmates’ health relief should be granted . . . .”); Blackmon v. Garza, 484 F. Appx. 866, 869 (5th Cir. 2012) (unpublished) (“Allowing a prisoner to be exposed to extreme temperatures can constitute a violation of the Eighth Amendment.”); Valigura v. Mendoza, 265 F. Appx. 232, 235 (5th Cir. 2008) (unpublished) (“[T]emperatures consistently in the nineties without remedial measures, such as fans, ice water, and showers, sufficiently increase the probability of death and serious illness so as to violate the Eighth Amendment.”). 15. Further, the Fifth Circuit has held that “extreme heat” coupled with a failure to provide cooling devices such as “fans, ice water, and daily showers” is a “condition [that] presents a substantial risk of serious harm to the inmates,” particularly where such conditions are “open and obvious,” and where “inmates ha[ve] complained of symptoms of heat-related illness.” Gates, 376 F.3d at 339-40 (determining that an Eighth Amendment violation justified an “injunction direct[ing 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”) (emphasis added). 16. A survey of the opinions from various Circuit Courts of Appeals reveals that other courts have also recognized that a prison official’s failure to provide relief from extremely high temperatures may constitute an Eighth Amendment violation. See
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Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013) (“[I]t is well settled that exposing prisoners to extreme temperatures without adequate ventilation may violate the Eighth Amendment.”); Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010) (“The district court did not err . . . in concluding that dangerously high temperatures that pose a significant risk to detainee health violate the Eighth Amendment.”); Chandler v. Crosby, 379 F.3d 1278, 1294 (11th Cir. 2004) (“[T]he Eighth Amendment applies to prisoner claims of inadequate cooling and ventilation.”). 17. In Jones‘El v. Berge, 374 F.3d 541 (7th Cir. 2004), the United States Court of Appeals for the Seventh Circuit affirmed a district court’s enforcement order requiring air-conditioning of plaintiffs’ cells during summer heat waves following “the plaintiffs assert[ions] that they were subjected to extreme temperatures in violation of the Eighth Amendment.” Id. at 543-45. 18. In Tillery v. Owens, 907 F.2d 418 (3d Cir. 1990), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s determination that prison conditions were unconstitutional because, among other things, “[v]entilation [was] grossly inadequate” and “[t]here [were] no systems to control temperature or humidty, causing excessive odors, heat and humidity.” Id. at 423. 19. Indeed, Defendants do not contest this well established principle. 20. The Court notes that prior to the Fifth Circuit’s decision in Gates, the Fifth Circuit rejected a prisoner’s claim that the conditions in extended lockdown at Angola were unconstitutional because, among other things, his lockdown cell was inadequately cooled and the high temperature aggravated his sinus condition. Woods, 51 F.3d at
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581. In reaching its determination, the Court noted that the plaintiff “failed to present medical evidence of any significance,” and went on to state: “[w]hile the temperature in extended lockdown may be uncomfortable, that alone cannot support a finding that the plaintiff was subjected to cruel and unusual punishment in violation of the Eighth Amendment.” Id. 21. The Fifth Circuit has since clarified that “[t]he Woods court found that Woods had not presented medical evidence sufficient to state an Eighth Amendment violation; Woods does not stand for the proposition that extreme heat can never constitute cruel and unusual punishment.” Gates, 376 F.3d at 339. 22. The Court further notes that Woods is distinguishable from the case at bar. As noted above, Woods did not present medical evidence. Here, Plaintiffs have introduced credible medical evidence in the form of medical records and sworn testimony. Further, in Woods, the plaintiff failed to provide temperature data for his lockdown cell. Woods, 51 F.3d at 581 (indicating that the plaintiff complained of “high temperature . . . uncomfortable in itself,” but provided no data as to the actual temperatures in the extended lockdown cell). Here, temperature, humidity, and heat index data were collected, analyzed, and submitted to the Court by a neutral thirdparty expert.
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1.) The Uncontroverted Temperature, Humidity and Heat Index Data
23. According to the NWS, the average maximum temperature in July 2013 in Baton Rouge, Louisiana was 90.5.70 In August 2013, the average maximum temperature in Baton Rouge was 90.9 degrees.71 24. However, as summarized above, the uncontroverted USRM data established that, during July and August 2013, inmates housed in each of the death row tiers were frequently subjected to temperatures above 90.5 degrees. The uncontroverted USRM data also established that inmates housed in each of the death row tiers were frequently subjected to heat indices above 100 degrees. The data collected by USRM established that the temperature, humidity, and heat index recorded inside the death row tiers was, more often than not, the same or higher than the temperature, humidity, and heat index recorded outside of the death row facility.72 25. For example, as noted above, inmates housed in tiers C and G were frequently subjected to heat indices that were up to twenty degrees higher than the heat indices recorded outside. Indeed, the uncontroverted USRM data established that inmates housed in these two tiers were subjected to heat indices as high as 110.3 degrees.
70 National Weather Service Forecast Office, New Orleans/Baton Rouge, LA, http://www.nws.noaa.gov/climate/index.php?wfo=lix (last visited Dec. 17, 2013). 71 Id. 72 For example, as summarized above, inmates in tier C were subjected to heat indices up to twenty degrees higher than outside of the death row facility for multiple hours on August 3, 2013. Inmates housed at the rear of tier G were also were subjected to heat indices up to twenty degrees higher than outside of the death row facility for multiple hours on that day.
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26. As it relates to Plaintiffs, the data shows that inmates housed in tier A, including Plaintiff Magee, were subjected to heat indices at 100 degrees or higher on five days during the data collection period. Such heat indices fall squarely within the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. Indeed, the data established that on each day of the collection period, the heat index rose to 92 degrees or higher in tier A. 27. The data also shows that inmates housed in tier H, including Plaintiffs Ball and Code, were subjected to heat indices at 100 degrees or higher on seven consecutive days during the data collection period. Such heat indices fall squarely within the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. The data established that on each day of the collection period, the heat index rose to 90 degrees or higher in tier H. 28. According to the NWS, “higher risk” individuals are at risk of sunstroke, heat cramps, or heat exhaustion with prolonged exposure to heat indices in the “extreme caution” or “danger” zones73:
73 Heat: A Major Killer, supra note 37. 48
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Heat Index 130E or higher
105E - 130E
90E - 105E 80E - 90E

Possible Heat Disorders for Individuals in Higher Risk Groups Heat Stroke/Sun Stroke Highly Likely
with Continued Exposure Sunstroke, Heat Cramps, or Heat Exhaustion Likely, and Heatstroke Possible with Prolonged Exposure
and/or Physical Activities Sunstroke, Heat Cramps, or Heat Exhaustion Possible with Prolonged Exposure and/or Physical Activities Fatigue Possible with Prolonged Exposure and/or Physical Activities

In other words, sunstroke, heat cramps, or heat exhaustion are “possible” among high risk individuals who are subjected to prolonged exposure to heat indices in the “extreme caution” zone, and “likely” among high risk individuals who are subjected to prolonged exposure to heat indices in the “danger” zone. See also Exhibit 1.
2.) The Risk of Harm to Plaintiffs Given Their Medical Conditions and Medications
29. The substantial risk of serious harm to Plaintiffs was further underscored by the sworn testimony of Plaintiffs’ expert, Dr. Susan Vassallo, M.D. (“Vassallo”). 30. Vassallo, who has been on the faculty of the New York University School of Medicine since 1993, is an attending physician in emergency medicine at Bellevue Hospital Center in New York, New York. Vassallo is a certified correctional heath

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professional and an expert on the effects of drugs and illness on an individual’s ability

to thermoregulate (or regulate one’s own body temperature).74

31. After observing the conditions in the death row facility, reviewing the USRM

data, and reviewing Plaintiffs’ medical records and Administrative Remedy Program

(“ARP”) requests75, Vassallo concluded that the heat conditions in the death row

facility: (1) put all three Plaintiffs at risk of heat-related illnesses, including heat

stroke; and (2) worsened Plaintiffs’ underlying medical conditions:

BY MR. KAMIN:

. . . And based upon your review of the information that you looked at, have you reached an opinion on that matter?

BY DR. VASSALLO:

Yes. My opinion is that the temperatures on death row are excessively hot, and put the prisoners there at risk of heat stroke, as well as worsening of their underlying medical conditions. In addition [ ], maybe death from those conditions, that is, cardiovascular disease, particularly.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

74 During the trial, the parties stipulated that Vassallo qualified as an expert “on the effect of drugs and [ ] illness on thermoregulation, including [the] effect of temperature on prisoners.” According to Vassallo, “. . . it’s not until your body loses [the] ability to regulate that the [body] temperature starts to rise and [it] becomes an emergency.” Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013. 75 According to the Louisiana Department of Public Safety and Corrections’ website, “[t]he Department and all local jails housing state offenders have established Administrative Remedy Procedures (ARP) through which an offender may, in writing, request a formal review of a complaint related to any aspect of his incarceration. Such complaints include actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, or challenges to rules, regulations, policies, or statutes. Through this procedure, offenders shall receive reasonable responses and where appropriate, meaningful remedies.” Frequently Asked Questions, Louisiana Department of Public Safety and Corrections, Corrections Services, http://www.doc.la.gov/quicklinks/offender-info/faq/ (last visited Dec. 17, 2013).
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32. Vassallo testified that each of Plaintiffs’ underlying medical conditions (i.e.

diabetes, hypertension, uncontrolled blood pressure) inhibit their ability to

thermoregulate.

33. Vassallo further testified that the Plaintiffs’ medications (i.e. beta blockers,

diuretics, antidepressants) also inhibit their ability to thermoregulate.

BY DR. VASSALLO:

Well, the reason that [there is] increased risk is because they have underlying health problems, including cardiovascular disease, diabetes, hypertension. Those are the problems that cause [increased risk]. Secondly, the medications that are required to treat them, which prevent their ability to respond to heat, which [are] well accepted to be risks. So those are some of the problems that the Plaintiffs have that make th[ese] conditions dangerous for them.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

34. Vassallo also testified about the increased risk to Plaintiffs Ball and Code, who

are over the age of fifty-five:

BY MR. KAMIN:

. . . Mr. Ball is actually sixty years old. Is that a factor in your assessment of his risk?

BY DR. VASSALLO:

Well, it is. Because, when you look at the CDC, which publishes something called an MMWR, which is the morbidity and mortality weekly report - it’s probably one of the most respected journals and publications in America today - [ ] you see very clearly that the people who are above the age of fifty-five to sixty are the ones who most commonly die during heat during heat episodes. They’re much more at risk. And so, the risk with age is shown in experimental studies. It’s shown in

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epidemiological studies of heat waves. We have a plethora of knowledge about that.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

35. When asked about the symptoms that Plaintiffs testified they experience during

the summer months, Vassallo testified as follows:

BY MR. KAMIN:

During his testimony yesterday at trial, Mr. Ball testified about symptoms including dizziness, sweating, light-headedness and weakness, all when it’s hot. Do those symptoms have any significance to you?

BY DR. VASSALLO:

Well, those are common temperatures symptoms that people will describe when they’re entering a phase of heat exhaustion.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

36. Vassallo further emphasized that even heathy individuals, and individuals

whose blood pressure is being controlled by medication are at risk of serious harm in

heat conditions like those in the death row tiers:

BY MR. KAMIN:

Okay. Does blood pressure control, due to medication, alleviate the risk of heat-related illness?

BY DR. VASSALLO:

No. I mean, the problem with these temperatures is that everybody is at risk in these temperatures. So, although the young, healthy individual who is not exercising is at less risk than an older individual with medical problems, like these three Plaintiffs. But every - this is - these temperatures are dangerous when you’re confined in this setting.

BY MR. KAMIN:

I just want to be clear for the Court’s benefit. That - does someone with hypertension - let’s

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take Mr. Magee as an example. Even though his hypertension is in the best state of the three Plaintiffs due to medication, does the hypertension itself still put him at risk for heat-related illness that he would not face if he did not have hypertension?

BY DR. VASSALLO:

The - my answer is yes. . . .

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

37. Vassallo’s expert opinion was further informed by her review of the USRM data:

BY MR. KAMIN:

And, so, Dr. Vassallo, based upon the data received from the neutral third party, USRM, has your opinion changed in any way from the report that you previously submitted?

BY DR. VASSALLO:

No.

BY MR. KAMIN:

What is your opinion, based upon the data submitted by USRM?

BY DR. VASSALLO:

My opinion is that the temperatures on death row are a health hazard to everybody, particularly to those individuals with health problems, such as cardiovascular disease, diabetes, hypertension. And that . . . it’s just a matter of time until there is a health emergency, such as heat stroke or myocardial infarction or stroke arises because of the temperatures on death row.

BY MR. KAMIN:

It is your opinion that the Plaintiffs, Nathaniel Code, Elzie Ball, and James Magee, are at imminent risk of severe physical harm due to the heat conditions on death row?

BY DR. VASSALLO:

Yes, it is.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

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38. During cross-examination, Vassallo testified as to how quickly one can have a

heat stroke:

BY MR. JONES:

Wouldn’t you expect in the medical records of Mr. Ball, for instance, who’s been on death row for fifteen years, to see some medical evidence of the effects of heat on him over that period of time?

BY DR. VASSALLO:

Well, no sir. The heat strokes that happened in Dallas, the heat strokes I’ve had in my entire career, I’ve had hundreds where I’ve been at the bedside of 110 degrees. Those people don’t have warning. The - they don’t have - there’s no warning with heat stroke. You don’t feel hot for five days or before or even one day. So, heat stroke is a failure of thermoregulation which is dramatic and catastrophic. It occurs suddenly. . . .

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

39. When further questioned by counsel for Defendants about the risk of heat

stroke, Dr. Vassallo testified as follows:

BY DR. VASSALLO:

. . . There are two pieces to the stress of the heat and the temperatures on death row. One is the worsening of their underlying medical conditions. And their risk of stroke, myocardial infarction, which is a heart attack, and et cetera. So, that is well supported in the literature. But you don’t have to have heat stroke for heat to do its - to be bad for you. And a sustained temperature such as they’re undergoing. The second piece is this issue of heat stroke. And that’s the piece that I don’t want to be misunderstood. That people can suffer suddenly from heat strike without ever having complained about the weather. . . .

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Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013. 40. The Court notes that Defendants failed to rebut Dr. Vassallo’s testimony regarding the risk of harm to Plaintiffs. Indeed, as noted above, Dr. Vassallo was subject to cross-examination. Yet, her testimony was largely uncontroverted. 41. Defendants point to evidence in the record that, prior to the instant litigation, Plaintiffs did not submit any formal written complaints, ARPs, or “sick call” requests as a result of the heat conditions. Defendants further contend that Plaintiffs’ medical records do not contain evidence of prior heat-related illnesses. 42. The record, however, is replete with evidence that Plaintiffs filed multiple ARPs complaining of the excessive heat conditions, prior to filing the instant litigation. See, e.g., Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013. 43. Further, prior complaints of heat-related illness are not a predicate for a finding that the conditions in Angola’s death row facility present a substantial risk of serious harm to Plaintiffs. “That the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Helling v. McKinney, 509 U.S. 25, 33 (1993). “It would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them.” Id. Accordingly, Plaintiffs need not establish that death or serious illness has occurred in order to establish a substantial risk of serious harm.76
76 Further, assuming, arguendo, that prior requests for medical assistance or complaints of heat-related illness are required, there is sufficient evidence in the record to support the conclusion that Plaintiffs were discouraged from submitting “sick call” requests because of the monetary and potential disciplinary consequences of doing so. Indeed, it is uncontested that Defendants’ “Health Care Request Form” includes the following acknowledgment above the signature and date lines:
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44. Additionally, the Court is not persuaded by Defendants’ argument that Plaintiffs’ lifestyle or diet choices - and not the heat conditions - are what increase Plaintiffs’ risk of harm. See Trial Transcript, Dr. Hal David Macmurdo, Aug. 7, 2013. It is uncontested that Plaintiffs’ conditions of confinement, including Plaintiffs’ food, beverage, and exercise options, are in the exclusive control of Defendants. While it is unclear from the record how often Plaintiffs are permitted to purchase beverages and snacks from the penitentiary canteen, even assuming, arguendo, that Plaintiffs are permitted to do so regularly, it belies logic to conclude that such beverages and snacks compose the majority of Plaintiffs’ diet. Rather, the majority of Plaintiffs’ diet is composed of beverages and food that are in the exclusive control of and provided by Defendants. See Trial Transcript, Testimony of Dr. Raman Singh, M.D., Aug. 7, 2013.77 Thus, Defendants’ argument is unavailing.
3.) Multiple Federal and State Agencies Have Recognized the Risk of Harm to Individuals Subjected to Extreme Heat
45. According to the Federal Emergency Management Agency (“FEMA”), “[m]ost heat disorders occur because the victim has been overexposed to heat or has over-
I understand that in accordance with Dept. Reg. No. B-06-001, I will be charged $3.00 for routine request [sic] for health care services, $6.00 for emergency request [sic] and $2.00 for each new prescription written and dispensed to me, with the exceptions noted in the referenced regulation. I am aware that if I declare myself a medical emergency and the health care staff finds that and [sic] emergency does not exist, I may be given a disciplinary report for malingering. 77 During the trial, Dr. Singh testified that his the Chief Medical and Mental Health Director for the all ninety of the Louisiana Department of Public Safety and Corrections’ correctional facilities, including Angola.
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exercised for his or her age and physical condition. Older adults, young children and
those who are sick or overweight are more likely to succumb to extreme heat.”78
46. Multiple federal agencies and the Louisiana Office of Public Health recognize
that the following human factors inhibit an individual’s ability to regulate
temperature: age, certain medical conditions, and use of certain medications.79
47. According to the Centers for Disease Control and Prevention (“CDC”),
individuals sixty-five years old or older, individuals who are physically ill, especially
those with heart disease or high blood pressure, and individuals with mental illness
are at greater risk to develop heat-related illnesses.80 Additional risk factors include:
“obesity, fever, dehydration, . . . poor circulation, . . . and prescription drug . . . use.”81
78 Extreme Heat, FEMA, http://www.ready.gov/heat (last visited Dec. 17, 2013) [hereinafter Extreme Heat]; see also Heat Wave - A Major Summer Killer, Louisiana Office of Emergency Preparedness, http://www.gohsep.la.gov/factsheets/heatwave.aspx (last visited Dec. 17, 2013) [hereinafter Heat Wave] (“Ranging in severity, heat disorders share one common feature: the individual has overexposed or over exercised for his age and physical condition in the existing thermal environment.”). 79 Heat, NWS, http://www.weather.gov/bgm/heat (last visited Dec. 17, 2013) [hereinafter Heat]; Frequently Asked Questions About Extreme Heat, Centers for Disease Control and Prevention, Emergency Preparedness and Response, http://www.bt.cdc.gov/disasters/extremeheat/faq.asp (last visited Dec. 17, 2013) [hereinafter Frequently Asked Questions About Extreme Heat] (“Those at greatest risk for heatrelated illness include infants and children up to four years of age, people 65 years of age and older, people who are overweight, and people who are ill or on certain medications.”); Excessive Heat Events Guidebook, June 2006, United States Environmental Protection Agency, http://www.epa.gov/hiri/about/pdf/EHEguide_final.pdf (last visited Dec. 17, 2013) [hereinafter Excessive Heat Events Guidebook]; DHH and DCFS Remind Residents to Stay Safe in Summer Heat: High Temperatures Put Louisianans at Risk, State of Louisiana Department of Health & Hospitals, Office of Public Health, http://dhh.louisiana.gov/index.cfm/newsroom/detail/2844 (last visited Dec. 17, 2013) [hereinafter High Temperatures Put Louisianans at Risk]. 80 Tips for Preventing Heat-Related Illness, CDC, Emergency Preparedness and Response, http://www.bt.cdc.gov/disasters/extremeheat/heattips.asp (last visited Dec. 17, 2013) [hereinafter Tips for Preventing Heat-Related Illness]. 81 Extreme Heat: A Prevention Guide to Promote Your Personal Health and Safety, CDC, Emergency Preparedness and Response, http://www.bt.cdc.gov/disasters/extremeheat/heat_guide.asp (last visited Dec. 17, 2013) [hereinafter Extreme Heat: A Prevention Guide].
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48. The CDC further advises, “[t]he risk for heat-related illness and death may increase among people using the following drugs: (1) psychotropics, which affect psychic function, behavior, or experience (e.g. haloperidol or chlorpromazine); (2) medications for Parkinson’s disease, because they can inhibit perspiration; (3) tranquilizers such as phenothiazines, butyrophenones, and thiozanthenes; and (4) diuretic medications or “water pills” that affect fluid balance in the body.”82 49. In addition to human risk factors, several environmental factors also increase the risk of heat-related illnesses and deaths. For example, according to FEMA, “[c]onditions that can induce heat-related illnesses include stagnant atmospheric conditions and poor air quality . . . [a]lso, asphalt and concrete store heat longer and gradually release heat at night, which can produce higher nighttime temperatures . . .”83 50. According to the NWS, successive days of heat with high nighttime temperatures also increases the likelihood that heat-related illnesses and deaths may occur.84 The NWS further advises that a building’s “overnight minimum heat index” is a factor that increases the impact of heat: “houses and buildings that do not have air conditioning will not cool down if the overnight minimum heat index remains above 75-80E and the area goes into a second hot day.”85
82 Frequently Asked Questions About Extreme Heat, supra note 79. 83 Extreme Heat, supra note 78. 84 Heat, supra note 79 (“Successive days of heat with high nighttime temperatures is really bad - fatalities will occur.”) (emphasis added). 85 Heat, supra note 79.
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51. The CDC further cautions that electric fans will not prevent heat-related illnesses when the temperature is in the high 90s.86 Specifically, the CDC warns that “[e]lectric fans may provide comfort, but when the temperature is in the high 90’s, fans will not prevent heat-related illness.”87 52. Instead, the CDC contends that “[a]ir conditioning is the strongest protective factor against heat-related illness.”88 Indeed, according to the CDC, “[e]xposure to air conditioning for a few hours a day will reduce the risk of heat-related illness.”89 53. Given the substantial risk of serious harm due to extreme heat, which has been recognized by multiple federal and state agencies, and the CDC’s recommendations, the Court is also not persuaded by Defendants’ argument that the conditions of confinement in the death row tiers are no different than the conditions in a “free” person’s home in which there no mechanical cooling or air conditioning is installed. While the Court recognizes that there are residents of this State who do not have air conditioning in their homes, it cannot be said that such conditions are analogous to the conditions of confinement at issue here. Indeed, when the temperature rises, “free” people are urged to take the precautions recommended by multiple federal and state agencies, and if need be, seek refuge in air conditioned buildings at will. In contrast, Plaintiffs are not permitted to take many of the precautions recommended by federal
86 Frequently Asked Questions About Extreme Heat, supra note 79. 87 Id. 88 Id. 89 Id.
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and state agencies, nor are they permitted to seek refuge in air conditioned buildings

at will.

54. In sum, the information published by multiple federal and state agencies

supports the conclusion that, considering Plaintiffs’ ages90, underlying medical

conditions and/or medications, the conditions of confinement in Angola’s death row

tiers create a substantial risk of serious harm to Plaintiffs.

4.) Multiple Federal and State Agencies Have Recognized the Importance of the Heat Index

55. During the trial, Defendants’ witness John “Jay” Grymes91 attempted to

minimize the importance of the heat index by characterizing it as merely a derived

number.

BY MR. HILBURN:

. . . What about the heat index? Can you explain what heat index means?

BY MR. GRYMES:

The heat index is a derived guideline estimate of the impact of the combination of temperature and atmospheric moisture on, ‘an average person.’

. . .

BY MR. HILBURN:

Okay. Are there any issues with respect to using particular heat index values without taking into account various environmental and physical factors?

90 The Court acknowledges that Plaintiff Magee is only thirty-five years old. However, the evidence supports the conclusion that his underlying medical conditions and medications place him in a higher risk category.
91 By stipulation of the parties, Grymes was accepted an as expert in the field of meteorology. He has worked as a meteorologist and climatologist for approximately thirty years.
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BY MR. GRYMES:

Well, the first thing you have to remember and this sometimes gets lost in this concept of heat index - it is a derived number. It’s not a real number. It, in fact, is sometimes called the apparent temperature. It’s what the air and humidity combination would feel like to the average person. . . . But it’s simply a guideline number.

Trial Transcript, Testimony of Jay Grymes, Aug. 6, 2013.

56. However, when further questioned by counsel for Plaintiffs, Grymes admitted

that when the heat index is high, he advises his television viewers so that they can

take the proper precautions.

BY MR. VORA:

Mr. Grymes, when you provide, and when your colleagues, who are weather persons, provide information about temperatures in South Louisiana during the summertime, you provide the heat index as well as the temperatures, generally, correct?

BY MR. GRYMES:

Often. Correct.

BY MR. VORA:

And when you say often, you mean more often than not? Is that a fair statement?

BY MR. GRYMES:

I can’t speak for the others on my team, but I would say I probably mention the heat index probably every other weathercast.

BY MR. VORA:

And the reason you provide the heat index every other weathercast is because you believe that it is important [to] your job [of] informing the public as to what they can expect the ambient conditions [to] which they are about to be exposed - in the event they go outside - to be, so that they can go on with their lives in a predictable fashion, correct?

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BY MR. GRYMES:

I provide heat index as a guideline to our viewers for them to make better decisions.

BY MR. VORA:

And it is a guideline that you would expect your viewers to make decisions pursuant to, correct?

BY MR. GRYMES:

I would hope so.

Trial Transcript, Testimony of Jay Grymes, Aug. 6, 2013.

57. The Court notes that reputable meteorology organizations agree that the heat

index is critical to human safety. For example, the NOAA’s heat alert procedures “are

based mainly on Heat Index Values.” See, e.g., Heat: A Major Killer, supra note 37;

Heat, supra note 79.

58. Finally, the Fifth Circuit itself has recognized heat index as a valid measure for

determining the constitutionality of prison conditions. See Gates, 376 F.3d at 334, 336.

59. Thus, the Court is unpersuaded that the heat index - which is calculated based

on the temperature and humidity - is not of critical importance when evaluating the

risk of serious harm to Plaintiffs.

60. In sum, based on the USRM data summarized above, the testimony presented

at trial, and the advisories issued by numerous federal and state agencies, the Court

concludes that Plaintiffs have met their burden of establishing that the conditions of

confinement at Angola’s death row constitute a substantial risk of serious harm to

plaintiffs. The Court’s conclusion is consistent with previous rulings by the Fifth

Circuit. See, e.g., Valigura, 265 F. Appx. at 236 (unpublished) (“requiring an inmate

to remain on his bunk almost twenty-four hours a day for several days in a row in

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temperatures into the nineties and hundreds are allegations that are sufficiently serious to implicate the minimal civilized measure of life’s necessities.”). Accordingly, the Court shall evaluate the second element of Plaintiffs’ Eighth Amendment claim.
b. The Evidence Establishes that Defendants Acted with Deliberate Indifference to the Substantial Risk of Serious Harm to Plaintiffs
61. Prison officials violate the Eighth Amendment when they act with deliberate indifference to a prisoner’s serious medical needs. Estelle, 429 U.S. at 105-106. 62. To establish that a prison official was deliberately indifferent to an inhumane condition of confinement, the plaintiff bears the burden of showing that the official knew of and disregarded an excessive risk to inmate health or safety. 63. “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Gates, 376 F.3d at 332. See also Farmer, 511 U.S. at 837 (the evidence must show that “the official [was] both . . . aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [that] he . . . also [drew] the inference.”); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994) (“[u]nder exceptional circumstances, a prison official’s knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk.”). 64. As established by the Supreme Court in Farmer, it is not necessary for an Eighth Amendment claimant to show that a prison official acted or failed to act due to
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a belief that an inmate would actually be harmed. It is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. 511 U.S. at 842.
1.) The Evidence Establishes that Defendants Had Knowledge of the Substantial Risk of Serious Harm to Plaintiffs
65. Considering the uncontroverted USRM data summarized above, Plaintiffs’ ages, Plaintiffs’ underlying medical conditions, and Plaintiffs’ medications, the Court concludes that Defendants’ knowledge of the substantial risk of harm may be inferred by the obviousness of the risk to Plaintiffs.92 66. In the alternative, the Court concludes that Defendants’ knowledge of the substantial risk of harm to Plaintiffs may be inferred from circumstantial evidence presented at trial. 67. In cases asserting deliberate indifference by prison officials where there is excessive heat, the Fifth Circuit has found deliberate indifference where prison officials ignored complaints “of heat stroke or some other heat-related illness.” Gates, 376 F.3d at 339; Blackmon, 484 F. Appx. at 872-73 (evidence was sufficient to allow a jury to conclude that prison officials were deliberately indifferent to significant risks to prisoner’s health where prisoner “filed numerous grievances complaining about the heat, its effect on his health, and prison officials’ failure to address his concerns”).
92 Indeed, there is nothing in the record to suggest that the temperature, humidity, and heat index data collected, analyzed, and disseminated by USRM from July 15 - August 5, 2013 was higher than the average temperature, humidity, and heat index normally experienced during the summer months in south Louisiana. Further, the record establishes that Defendants have been in possession of Plaintiff’s medical records throughout the duration of their incarceration at death row.
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68. Here, it is uncontroverted that Plaintiffs submitted multiple ARPs to
Defendants complaining of the excessive heat conditions, prior to filing the instant
litigation.
69. During the trial, the Court admitted into evidence multiple ARPs submitted by
Plaintiffs to Defendants between July 24 and October 17, 2012. The Court also
admitted into evidence Defendants’ responses to Plaintiffs’ ARPs, in which Defendants
acknowledged Plaintiffs’ claims that it is “extremely hot on Death Row” and that they
are “more susceptible to heat” because of their underlying medical conditions and
medications, and denied Plaintiffs’ requests for relief.93
93 Defendants’ receipt of and response to Plaintiffs’ ARPs was also summarized in the parties’ Statement of Undisputed Facts (Doc. 53-1), which states:
Plaintiff Ball submitted a Request for Administrative Remedy (“ARP”) on July 28, 2012 to Warden Cain, describing among other things the excessive heat conditions, the adverse symptoms he was experiencing due to the heat, his inability to alleviate the conditions, and his medical diagnoses and medications. Plaintiff Elzie Ball requested that the prison accommodate his illness by providing a safer environment. Angola, through Warden Norwood, issued a Response denying the ARP on October 12, 2012. Plaintiff Ball appealed Warden Norwood’s response on October 17, 2012. The DOC denied the appeal December 14, 2012. Plaintiff Ball’s grievance process was thereby exhausted.
Plaintiff Code submitted Request for Administrative Remedy (“ARP”) on July 24, 2012, describing the excessive heat conditions, the adverse symptoms he was experiencing due to the heat, his inability to alleviate the conditions, and his medical diagnoses and medications. Plaintiff Nathaniel Code requested that the prison accommodate his illness by providing a safer environment. Angola, through Warden Norwood, issued a Response denying the ARP on September 5, 2012. Plaintiff Code appealed Warden Norwood’s response on September 13, 2012, reasserting his grievances and outlining why LSP’s First Step Response was inadequate. The DOC denied the appeal on November 21, 2012. Plaintiff Code’s grievance process was thereby exhausted.
Plaintiff Magee submitted a Request for Administrative Remedy (“ARP”) on August 28, 2012, describing the excessive heat conditions, the adverse symptoms he was experiencing due to the heat, his inability to alleviate the conditions, and his medical diagnoses and medications. Plaintiff James Magee requested that the prison accommodate his illness by providing a safer environment. Angola, through Warden Norwood, issued a Response denying the ARP on November 6, 2012. Plaintiff Magee appealed Warden Norwood’s response on November 7, 2012. The DOC denied the appeal
65
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70. During the trial, Defendant Norwood, who has been the Assistant Warden

responsible for the death row tiers since February 2011, testified that she received

thirteen ARPs related to the heat conditions in the death row tiers:

BY MR. VORA:

You received the ARP request that was filed by Mr. Elzie Ball, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And you received the ARP request that was filed by Mr. Code?

BY MS. NORWOOD: Yes.

BY MR. VORA:

You received the ARP request that was filed by Mr. Magee?

BY MS. NORWOOD: Yes.

BY MR. VORA:

You received all of those ARP requests?

BY MS. NORWOOD: I did, among others.

BY MR. VORA:

And you received - the ARP requests that I’m referring to, Mr. Code, Mr. Ball, Mr. Magee, were related to what they described as extreme heat or hot conditions. Is that accurate?

BY MS. NORWOOD: Yes.

. . .

BY MR. VORA:

You received many, many ARPs being filed since February, end of February, 2011, correct?

on January 3, 2013. Plaintiff Magee’s grievance process was thereby exhausted.
(Doc. 53-1, pp. 2-3.) Despite these undisputed facts, Norwood later attempted to characterize Plaintiffs’ ARPs as nothing more than Plaintiffs’ complaints that “they were hot and [that] they wanted air conditioning.” Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.
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BY MS. NORWOOD:

Actually, no. I have received the most on this subject.

BY MR. VORA:

And when you say this subject, you mean -

BY MS. NORWOOD: The heat.

BY MR. VORA:

- with respect to the heat, correct?

BY MS. NORWOOD: Right.

BY MR. VORA:

And with respect to those, how many would you approximate there would be, how many requests?

BY MS. NORWOOD: Thirteen.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

71. Norwood also testified that she talked with Plaintiffs Ball and Code regarding

the heat conditions on multiple occasions:

BY MR. VORA:

And did you speak to Mr. Ball and Mr. Code prior to the filing of the ARP?

BY MS. NORWOOD: I did.

BY MR. VORA:

Did you speak to them after they filed the ARP?

BY MS. NORWOOD: I did.

BY MR. VORA:

Did you speak to them after they filed this lawsuit?

BY MS. NORWOOD: Yes, sir.

72. During the trial, Defendant Cain, who oversees the entire penitentiary,

including the death row facility94, testified regarding Defendants’ knowledge of a

94 Cain testified as follows: BY MR. VORA:

How long have you been the Warden at Angola?

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substantial risk of serious harm to Plaintiffs.

73. For example, according to Cain, correctional officers assigned to the death row

facility “closely monitor” the temperature in the death row tiers and record such

temperatures in tier log books.

BY MR. VORA:

You state here in this letter that we do understand their concern and would like to assure you that the temperature, and all the main areas, is closely monitored. Do you see that, sir?

BY MR. CAIN:

Yes.

BY MR. VORA:

And when you say ‘closely monitored’ you mean in the logs that are required by the correctional officers to be filled out with the air temperatures at various times throughout the day. Is that correct?

BY MR. CAIN:

Eighteen and a half years.

BY MR. VORA:

And during the eighteen and a half years that you have been Warden at Angola, you have been the top official at Angola?

BY MR. CAIN:

Yes.

BY MR. VORA:

You would also, therefore, exercise control and responsibility over what happens at death row, correct?

BY MR. CAIN:

Yes.

According to Cain, he also is responsible for enforcing policies and/or regulations related to inmates who have been prescribed medications that increase their risk of developing heat-related illnesses:

BY MR. VORA:

Sir, my question is, you are responsible for enforcing any policies that would have to deal with medications that could create the risk of an adverse effect to somebody’s health, an inmate’s health, as a result of rising temperatures - is that a fair statement?

BY MR. CAIN:

Yes.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

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BY MR. CAIN:

Yes.

BY MR. VORA:

Those logs are monitored by individuals who are to monitor them to ensure that the temperatures do not reach unacceptable levels, correct?

BY MR. CAIN:

Yes, correctional officers.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

74. Defendant Norwood also testified as to Defendants’ constant monitoring of the

internal temperature95:

BY MR. VORA:

. . . Correctional officers then, pursuant to policies that are in place on the death row tiers, are required to record temperatures in log books. Is that accurate?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And that temperature is supposed to be recorded indoors as well as outdoors, correct?

BY MS. NORWOOD: Indoors daily.

BY MR. VORA:

It is recorded indoors daily, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

It is recorded multiple times per day, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

It is recorded more or less every two hours indoors, correct?

95 Norwood further testified that the mercury in-glass thermometers in each of the death row tiers are “hard to read.” However, both she and Cain testified that Defendants have not attempted to replace the thermometers nor taken any action to make the current in-mercury thermometers easier to read. Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013; Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.
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BY MS. NORWOOD: Yes.

BY MR. VORA:

Its your responsibility to ensure that the correctional officers properly record that temperature?

BY MS. NORWOOD: Ultimately, yes.

BY MR. VORA:

And it’s your responsibility not just that they record it, but that they record it accurately, correct?

BY MS. NORWOOD: Ultimately, yes.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

75. Defendant Cain further testified that he visits the death row facility regularly

and is aware of the heat conditions in the tiers:

BY MR. CAIN:

. . . I go to death row regularly. So I walk in there. So I know what it feels and how hot it is and inmates talk to me. So, evidently I didn’t have anyone talk to me about being too hot.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

76. Despite Cain’s contention that Plaintiffs did not verbally complain about the

heat conditions, the Court concludes that Defendants had knowledge of the heat

conditions in the death row tiers, and thus, the substantial risk of serious harm to

Plaintiffs. Considering the uncontroverted USRM data, Plaintiffs’ ages, Plaintiffs’

underlying medical conditions, and Plaintiffs’ medications, the Court concludes that

Defendants’ knowledge of the substantial risk of harm may be inferred by the

obviousness of the risk to Plaintiffs. In the alternative, based on the evidence that: (1)

Plaintiffs submitted multiple APRs complaining of the excessive heat conditions to

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Defendants, prior to filing the instant litigation; (2) Defendants “closely monitor” the

temperature in each of the death row tiers and record such temperatures in tier log

books; and (3) Defendants Cain and Norwood walk the death row tiers “regularly,” the

Court concludes that Defendants’ knowledge of the substantial risk of harm to

Plaintiffs may be inferred.

2.) The Evidence Establishes that Defendants Disregarded the Substantial Risk of Serious Harm to Plaintiffs

77. Despite “know[ing] what it feels and how hot it is,” Cain testified that he did not

take any actions to reduce the heat conditions in the death row tiers, prior to the data

collection period.96

78. Indeed, according to Cain, he often “thought” of ways to reduce the heat in the

death row tiers, yet failed to take any action, even after the instant litigation was filed:

BY MR. VORA:

Warden Cain, between the June date on which this complaint was filed to July 2nd, did you ever consider taking any remedial measures to address the issue of heat on the death row tiers?

BY MR. CAIN:

I don’t recall the specific dates and times, but we always have thought and tried to figure any way to have the ice on the tiers, any way and to add extra fans. We’ve got a building with no fans. Inmates know that. Anything we can come up with and make that building cooler or any other building at Angola, we would do it. And we will - it was always on our mind how to overcome the heat. Because their comfort means less problems for me. I’m sure

96 Defendants’ attempts to “lower the temperatures” in the death row tiers during the data collection period will be addressed in a separate order by this Court.
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during that period of time, as all of the time almost, we’re thinking about how to get this place cooler.

BY MR. VORA:

Did you actually do anything to try to make the death row tiers cooler between the June time frame that the complaint was filed and July 2nd?

BY MR. CAIN:

I don’t know that I did or didn’t. I know that we made a mistake after the Judge gave the [July 2nd] order. Is that what you’re talking about?

BY MR. VORA:

No, sir. I’m trying to refer to the time before the order was issued but after the complaint, in which the lawsuit against you was filed. During that time frame, did you take any actions in order to remedy the heat that the inmates were complaining about in this case?

BY MR. CAIN:

I don’t think so. I think we were already giving the ice. We thought about doing buckets at some point in there. So, I don’t know exactly when. So, I can’t answer accurately, because I don’t remember in your dates. But we were thinking about ice and thinking about other things all through that period of time. Specifically, I don’t want to say I did when I don’t know for sure that I did exactly during those dates.

BY MR. VORA:

Warden Cain, you never provided a[n] [ice] bucket that you referred to in your previous answer to any of the inmates on the death row tiers at any point in time since this lawsuit was filed against you, correct?

BY MR. CAIN:

No, we haven’t done that yet. I thought about it.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

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79. Cain conceded, however, that once the Court-ordered data collection period

began, he took action to attempt to reduce the temperature in tiers C and G, the tiers

with the highest recorded temperatures and heat indices:

BY MR. VORA:

But you ordered the awnings to be procured, correct?

BY MR. CAIN:

Well, this is a homemade thing. Where we had wood in the warehouse and the 2 x 4’s, and we used, I think, mattress material that we would normally make mattresses with. And this was just a really thrown together thing, just to see if it would shade. We were trying to shade the windows to see what would happen. To see if the temperature would fall.

. . .

BY MR. VORA:

You had tried other measures in order to try to lower the temperature and address the issue of heat that had been raised by Mr. Ball, Mr. Magee, and Mr. Code, right?

BY MR. CAIN:

I haven’t tried other measures. I’ve only given them ice.

BY MR. VORA:

You never tried to do - you never tried to do something with soaker hoses?

BY MR. CAIN:

I had never before, but I did during this [data collection period], but it didn’t work.

BY MR. VORA:

And during this time, when did you try to use soaker hoses?

BY MR. CAIN:

At the same time that we were putting the awnings up. I would think the next day or two. And there was, I mean, that didn’t work at all. It was not, it was never up, really. It was up, but the water all ran out as soon as you put it on. We didn’t have enough power.

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BY MR. VORA: BY MR. CAIN: BY MR. VORA: BY MR. CAIN:
BY MR. VORA: BY MR. CAIN: BY MR. VORA:

It was a half inch of line going into a threequarter inch hose. Who gave the order to install the soaker hoses and try to use them? Me. . . . Outside of misting, using soaker hoses and awnings, have you ever attempted to do anything else in order to address the issues that Mr. Ball, Mr. Code, and Mr. Magee have raised with respect to what they consider to be prolonged exposure to heat, sir? I’ve just ensured - the only thing I would do is ensure that the system put in the building was working, that the belts were there, that they kept it operating, and it didn’t, it didn’t falter. Because it did a time or two. And so we had to keep the belt on there because the belts would break off. And they turned the fans that worked in the duct work that make air moves through the, through the little vents that go into the cells. So yes, keep it, keep it up. Maintain it well. What we do have, make it work the best we can. And add the additional fans. Did you ever consider doing anything that would not have manipulated the USRM data, that would have provided some relief for Mr. Ball, Mr. Code, or Mr. Magee? I just told you what I did. That’s all I’ve ever done. You had considered previously, though, providing them with larger buckets in which they could store ice, correct?
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BY MR. CAIN:

We’ve never given them buckets. We thought about that, about using the soft-type ice chests.

BY MR. VORA:

But you never provided the soft-type ice chest that you had considered to Mr. Ball, Mr. Code, or Mr. Magee. Is that correct?

BY MR. CAIN:

Correct.

BY MR. VORA:

To this day, you do not have a soft-type ice chest, correct?

BY MR. CAIN:

No. We don’t have one.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

80. While the Court questions Cain’s motivation for taking such actions for the first

time during the Court ordered data collection period, it defies logic to conclude that

Cain would have taken such actions if he did not have knowledge of the heat conditions

in the death row tiers. Indeed, prior to the filing of the instant litigation, Cain

acknowledged the heat conditions in the death row tiers and the need for remedial

action. See Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013 (“Anything

we can come up with and make that building cooler or any other building at Angola,

we would do it. And we will - it was always on our mind how to overcome the heat.”).

Nevertheless, Cain failed to take any remedial action until USRM began collecting,

analyzing, and disseminating the alarming temperature, humidity, and heat index

data.

81. Further, during the trial, Cain testified about the importance of even one-half

of a degree decrease in the death row tiers:

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BY MR. CAIN:

And if it were a half degree, we would know it. And the half a degree is a half a degree. And we would put the awnings up, if we could save a half a degree.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

82. Additionally, the evidence establishes that Defendants failed to abide by their

own policies and regulations when they failed to add Plaintiff Magee, who is on

psychotropic medication, to Angola’s “Heat Precautions List.”97

BY MR. VORA:

. . . Do you recognize this document as being an email that you sent to the death row supervisors on July 24, 2013 at 9:19 a.m.? Do you recognize that?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And that is an email that relates to the heat precaution list for the week of July 22nd, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

This goes out to all of the death row supervisors because there are [inmates who] belong on the heat precautions list that [the supervisors are] supposed to monitor, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And that is pursuant to a prison policy and applies to the death row tiers in which [inmates] are to be monitored because of their risk of heat-related illness. Is that correct?

BY MS. NORWOOD: Yes.

97 During the trial, the Court admitted into evidence Louisiana Department of Public Safety and Corrections Health Care Policy No. HC-45 and Louisiana State Penitentiary Department Regulation No. B-06-001. It is undisputed that both the policy and regulation require Defendants to, inter alia, identify, and monitor “offenders prescribed psychotropic medication.”
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BY MR. VORA: BY MS. NORWOOD: BY MR. VORA: BY MS. NORWOOD: BY MR. VORA: BY MS. NORWOOD: BY MR. VORA: BY MS. NORWOOD: BY MR. VORA:
BY MS. NORWOOD:
BY MR. VORA:
BY MS. NORWOOD:

. . . You were the recipient of this email, correct? Yes. This was July 23, 2013, correct? Yes. You did not ask for Mr. Ball, Mr. Magee, or Mr. Code to be put on a list, or this list, correct? No. Meaning that you did not ask at any time? That is your statement? That’s true. . . . Warden Norwood, there is, in fact, a list of offenders who are placed on a list because they are perceived to be at risk of heat-related illness, correct? If they are on any type of psychotropic medication, yes. . . . This list was distributed then weekly to you, who then in turn provide[d] it to the relevant death row supervisors to ensure [that] the policies of the prison [ ], with respect to the death row tiers [and] with respect to monitoring, [were] properly followed and enforced, is that correct? Yes.

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BY MR. VORA:

And this is an example of the list that you did not put Mr. Ball, Mr. Magee, or Mr. Code on, despite the fact that they had complained of their concern about being affected by the heat that they had been exposed to, correct?

BY MS. NORWOOD:

They are not on any psychotropic, except for Mr. Magee.98

. . .

BY MR. VORA:

Warden Norwood, the lists that get sent out every week of the [inmates] who are at risk for heat-related illness, with respect to that list that goes out every week, at no time did you ask that Mr. Code, Mr. Magee, or Mr. Ball be placed on that list, is that a true statement?

BY MS. NORWOOD: Yes.

Indeed, Defendants failed to introduce any evidence that Magee is on, or was ever

placed on, the “Heat Precautions List.”

83. In sum, the Court concludes that Defendants disregarded the substantial risk

of serious harm to Plaintiffs’ health and safety. Accordingly, the Court concludes that

Plaintiffs have met their burden of proving that Defendants acted with deliberate

indifference. Thus, the Court concludes that the conditions of confinement at Angola’s

death row do not meet constitutional standards, and Defendants have violated the

98 Defendants’ staff physician, Dr. Macmurdo, also acknowledged this fact:

BY MS. MONTAGNES:

Do you consider Remeron® to be a psychotropic drug?

BY DR. MACMURDO:

Yes.

BY MS. MONTAGNES:

And Mr. Magee is on Remeron®, isn’t he?

BY DR. MACMURDO:

Yes.

Trial Transcript, Testimony of Dr. Hal David Macmurdo, Aug. 7, 2013.

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Eighth Amendment.99 84. This conclusion is consistent with determinations made by other District Courts addressing similar prison conditions, and affirmed by various Courts of Appeals. 85. For example, in Russell v. Johnson, No. 02-261, 2003 WL 22208029 (N.D. Miss. May 21, 2003) a magistrate judge in the Northern District of Mississippi determined that prison officials at the Mississippi State Penitentiary (“Parchman”) violated death row inmates’ Eighth Amendment rights by, among other things, forcing them to endure summer cell temperatures exceeding a heat index of 90 degrees without access to “extra showers, ice water, or fans” where the ventilation in death row was otherwise “inadequate to afford prisoners a minimal level of comfort during the summer months.” Id. at *2, *5, aff’d in part, vacated in part sub nom. by Gates, 376 F.3d 323. After a bench trial, the magistrate judge found:
The probability of heat-related illness is extreme [on death row], and is dramatically more so for mentally ill inmates who often do not take appropriate behavioral steps to deal with the heat. Also, the medications commonly given to treat various medical problems interfere with the body’s ability to maintain a normal temperature. Id. at *2. Based on these findings of fact, the court determined that the inmates’ cell conditions were unconstitutional, and ordered the defendants to “insure that each cell is equipped with a fan, that ice water is available to each inmate, and that each inmate may take one shower during each day when the heat index is 90 degrees or above.” Id. at *5. As an alternative, the magistrate judge ordered that “the defendants may
99 The Court notes that the fact that Angola has attained accreditation from the American Correctional Association (ACA) does not moot the issues in this matter, nor does it automatically ensure that the conditions of confinement at death row meet constitutional standards. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 190 (2002).
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provide fans, ice water, and daily showers during the months of May through
September.”100 Id.
86. On appeal, the Fifth Circuit agreed that the magistrate judge’s findings were
sufficient to support the injunction, to the extent that it applied to Parchman’s death
row unit.101 Gates, 376 F.3d at 340. In particular, the Fifth Circuit noted that the
magistrate judge’s findings supported a determination that “the probability of heat-
related illness [was] extreme” on Parchman’s death row and, therefore, the heat index
“present[ed] a substantial risk of serious harm to the inmates.” See id. Thus, “based
on the open and obvious nature of these conditions and the evidence that inmates had
complained of symptoms of heat-related illness,” the Fifth Circuit affirmed “the trial
court’s finding regarding MDOC’s deliberate indifference” and held that the injunction
was “justified by an Eighth Amendment violation.” Id. See also Valigura, 265 F. Appx.
at 235-36 (affirming the district court’s denial of summary judgment to prison officials
at Texas’s Beeville State Prison on an inmate’s prison conditions claim where poor
ventilation in the bunk area resulted in “temperatures above the eighties and into the
100 In contrast, here, Plaintiffs’ cells are not equipped with fans. Rather, each housing tier includes nonoscillating fans, which are mounted approximately nine feet away from the inmate cells. Each fan is shared by two cells. However, during the Court’s site visit, the undersigned observed that the fans did not provide equal amounts of air flow to each cell, nor did the fans provide a detectable cooling effect or relief from the heat conditions in the tier. Further, it is uncontroverted that Plaintiffs do not have direct access to ice during the twenty-three hours per day that they are confined to their cells. Rather, Plaintiffs are largely dependant on other death row inmates to distribute ice to them during that inmate’s tier time. Further, while the Court did not attempt to measure the temperature of the water from the in-cell faucets, the undersigned noted that the cold water was lukewarm to the touch. Additionally, it is uncontroverted that Plaintiffs are permitted only one shower per day, and that the shower water temperature is maintained between 100 and 120 degrees. 101 The Fifth Circuit invalidated the injunction to the extent that it purported to apply to cell blocks beyond Parchman’s death row because “the class represented by [the plaintiff] consists entirely of Parchman’s Death Row prisoners.” Gates, 376 F.3d at 339.
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hundreds,” because temperatures consistently in the nineties without remedial measures, such as fans, ice water, and showers, sufficiently increase the probability of death and serious illness so as to violate the Eighth Amendment) (citing Gates, 376 F.3d at 339-40). 87. The district court for the Western District of Wisconsin addressed a similar situation in Jones‘El v. Berge, No. 00-421, 2003 WL 23109724 (W.D. Wis. Nov. 26, 2003), aff’d Jones‘El, 374 F.3d at 545. After prisoners confined at the Supermax Correctional Institution in Boscobel, Wisconsin (“Supermax”) sued prison officials alleging unconstitutional conditions of confinement based, in part, on having to endure “extreme” summer temperatures in their cells, Jones‘El, 374 F.3d at 542-43, the defendants entered into a settlement agreement requiring them to “investigate and implement as practical a means of cooling the cells during summer heat waves.” Jones’El, 2003 WL 23109724, at *1. Later, when the defendants failed “to cool the cells to temperatures between 80 degrees and 84 during the hot months,” the prisoners sought an enforcement order from the district court. See id. Noting the defendants’ admission that “air conditioning [was] the only viable way to cool the cells to the required temperatures,” id., the district court ordered the defendants “to take steps immediately to air condition the cells.” Id. at *2. 88. On appeal, the Seventh Circuit affirmed the district court’s enforcement order, and rejected the prison officials’ arguments that the order failed under the Prison Litigation Reform Act because it was not narrowly drawn, and that installing air conditioning at Supermax was otherwise impractical and/or would cause undue strife
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between prisoners and guards. Jones‘El, 374 F.3d at 545. 89. Likewise, in Graves v. Arpaio, 623 F.3d 1043 (9th Cir. 2010), the Ninth Circuit affirmed a district court order requiring the Sheriff of Maricopa County, Arizona to “provide pretrial detainees taking psychotropic medications with housing in which the temperature does not exceed 85° F.” Id. at 1045. The district court’s order came in the wake of ongoing litigation in which pretrial detainees argued that “harsh conditions of confinement at [county] jails,” which included “dangerously high [cell] temperatures,” violated their constitutional rights. Id. at 1046. After a hearing on the defendants’ Motion to Terminate a previous order requiring remedial relief, see id. at 1046, “[t]he district court found that air temperatures above 85° F greatly increase the risk of heat-related illnesses for individuals who take psychotropic medications and found further that pretrial detainees taking psychotropic medications [were] held in areas [of the jails] where the temperature . . . exceeded 85° F.” Id. at 1048-49. Based on these findings, “[t]he district court ordered Sheriff Arpaio to house all detainees taking psychotropic medications in temperatures that do not exceed 85° F.” Id. at 1049. 90. On appeal, the Ninth Circuit determined that “the district court reasonably concluded that temperatures in excess of 85° F are dangerous for pretrial detainees taking psychotropic medications,” and agreed with its legal conclusion that the “Eighth Amendment requires that the temperature of the areas in which pre-trial detainees are held or housed does not threaten their health or safety.” Id. Thus, “the Eighth Amendment prohibits housing such pretrial detainees in areas where the temperature
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exceeds 85° F.” 91. Finally, this Court’s conclusion that the conditions in Angola’s death row tiers are unconstitutional is not inconsistent with the Eleventh Circuit’s reasoning in Chandler v. Crosby. In that case, death row inmates at Florida’s Union Correctional Institution (“UCI”) also alleged unconstitutional conditions of confinement based on “the high temperatures in their cells during the summer months.” Chandler, 379 F.3d at 1282. After a bench trial, the district court rejected the inmates’ claims, determining that they failed to establish the objective prong for proving an Eighth Amendment violation.102 See id. at 1297 n.27. This determination was based on evidence showing that during the period in question: (1) the typical temperature in the inmates’ cells was “between approximately eighty degrees at night to approximately eighty-five or eighty-six degrees during the day,” id. at 1285 (quotation marks omitted); (2) the inmates’ experienced temperatures over ninety degrees only nine percent of the time and never experienced temperatures exceeding 100 degrees, id. (quotation marks omitted); and (3) the ventilation system on UCI’s death row exceeded industry standards for air circulation and was working properly, see id. at 1285-86 n.14. 92. On appeal, the Eleventh Circuit affirmed the district court’s ruling. Before discussing the evidence, the Court clarified three points of law: “[f]irst, the Eighth Amendment applies to prisoner claims of inadequate cooling and ventilation. Cooling and ventilation are distinct prison conditions, and a prisoner may state an Eighth
102 The district court also determined that the inmates failed to satisfy the subjective prong. Chandler, 379 F.3d at 1297 n.27.
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Amendment claim by alleging a deficiency as to either condition in isolation or both in combination,” id. at 1294; “[s]econd, the Eighth Amendment is concerned with both the ‘severity’ and the ‘duration’ of the prisoner’s exposure to inadequate cooling and ventilation,” id. at 1295; and “[t]hird, a prisoner’s mere discomfort, without more, does not offend the Eighth Amendment,” id. However, despite acknowledging that under the right circumstances an excessive heat claim could make out an Eighth Amendment violation, the Eleventh Circuit agreed with the district court that the inmates “failed to meet their burden under the objective component” of the test. Id. at 1297. First, the summertime heat, averaging “between approximately eighty degrees at night to approximately eighty-five or eighty-six degrees during the day,” was simply “not unconstitutionally excessive.” Id. “Second, [UCI was] equipped with a ventilation system that effectively manage[d] air circulation and humidity.” Id. at 1298. Finally, “apart from the ventilation system, numerous conditions at [UCI] alleviate[d] rather than exacerbate[d] the heat,” including that “[t]he cells [were] not exposed to any direct sunlight”; the inmates were allowed to wear “only shorts in the summer months”; every cell had a sink with “cold running water, and every inmate possesse[d] a drinking cup”; the inmates were not compelled to engage in strenuous activity; and, finally, the inmates had “limited opportunities to gain relief in air-conditioned areas, e.g., during visitation time.” 93. As discussed, the facts in the instant matter are materially different than the facts addressed by the district court and the Eleventh Circuit in Chandler. First, and most obvious, the temperatures, humidity, and heat index endured by Plaintiffs here
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are substantially higher than those at issue in Chandler. Second, it is uncontroverted

that Plaintiff Code is subjected to direct sunlight through the window across from his

cell. Third, whereas the prison officials in Chandler produced extensive evidence

regarding the ventilation system at UCI and its functional capacity, see id. at 1283-85,

the record here is void of any evidence regarding the instant ventilation system’s

ability to lower the temperature, humidity, and heat index in the tiers. Rather,

Plaintiffs produced testimonial evidence from David Garon103, which was

uncontroverted, that the ventilation system at Angola is incapable of cooling or

dehumidifying the death row tiers:

BY MS. COMPA:

. . . Can you describe the system that’s in place in the death row tiers?

BY MR. GARON:

It’s a - there’s a heating only system for winter conditions. And there’s an exhaust system for ventilation. That’s basically all there is.

BY MS. COMPA:

And were there -

BY MR. GARON:

There’s some prop fans mounted on the walls also.

BY MS. COMPA:

And with respect to the exhaust system that you just mentioned, what is that designed to do?

BY MR. GARON:

Its designed to exhaust air from the facility and its toilets and each cell. And there’s - so there’s an exhaust system for the cell block, each individual cell. There’s exhaust fans to take care of that. And there is a separate exhaust system for the showers, basically just

103 The parties stipulated that Garon is an expert in the field of testing and balancing, who tests, adjusts, and analyzes mechanical heating, ventilation, and air conditioning systems.
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to remove odors and provide some ventilation.

BY MS. COMPA:

And what - what is it designed to do, if I can ask it that way? What are the limitations of the serta system?

BY MR. GARON:

Its just to remove odors and ventilate the cell.

BY MS. COMPA:

And is [the ventilation system] designed to cool or dehumidify the air in any way?

BY MR. GARON:

No. You can’t dehumidify with exhaust.

Trial Transcript, Testimony of David Garon, Aug. 5, 2013. Garon further testified that

Angola’s “natural” ventilation system, which is not recommended in hot, humid

climates, does not include features that are essential to a sound natural ventilation

system:

BY MS. COMPA:

Is building a building in south Louisiana with natural ventilation typical for this region?

BY MR. GARON:

I have never seen a naturally ventilated building that didn’t have mechanical cooling.

BY MS. COMPA:

Have you seen a naturally ventilated building that did have mechanical cooling?

BY MR. GARON:

Yes.

. . .

The exhaust system would qualify under naturally ventilated. As long as it doesn’t have the mechanical cooling, it will qualify as naturally ventilated.

. . .

BY MS. COMPA:

Does the death row building, based on your inspection of the premises, include features

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that are considered part of a sound natural ventilation system?

BY MR. GARON:

No.

BY MS. COMPA:

And what - what are some features that might describe such a system that are lacking in death row?

BY MR. GARON:

As I described before, usually you would want to have cross - some sort of cross ventilation. Windows on both sides. Orientation of the building geographically, and the geometry of the building. . . .

Trial Transcript, Testimony of David Garon, Aug. 5, 2013. Thus, according to the

uncontroverted testimony of Plaintiffs’ expert, a building designed and built to house

human beings for twenty-four hours per day should have included a mechanical cooling

system or a cross-ventilation system at the very least. The death row tiers have neither.

Fourth, whereas the UCI inmates each had sinks with cold running water in their

cells, the uncontroverted evidence here is that Plaintiffs do not have unfettered access

to ice. Further, as noted above, during the Court’s site visit, the undersigned noted

that the “cold” water was lukewarm to the touch. Fifth, it is uncontroverted that

Plaintiffs’ opportunities to gain relief in air-conditioned areas is limited to once every

few months.

94. Additionally, the medical records and uncontroverted testimonial evidence

establish that, due to their underlying medical conditions and medications, which

interfere with their ability to maintain a normal temperature, the probability of

Plaintiffs developing heat-related illness in such extreme heat conditions is high.

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95. As noted above, “the Supreme Court has made clear that the standard against which a court measures prison conditions are ‘the evolving standards of decency that mark the progress of a maturing society,’ and not the standards in effect during the time of the drafting of the Eighth Amendment.” Gates, 376 F.3d at 332-33 (quoting Estelle, 429 U.S. at 102) (“The [Eighth] Amendment embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency’. . . against which we must evaluate penal measures.”) (citations omitted). Given the overwhelming evidence in the record and our nations’ current standards of decency, it cannot be said that the conditions of confinement in Angola’s death row facility pass constitutional muster. 96. In sum, the Court concludes that the conditions of confinement at Angola’s death row constitute cruel and unusual punishment, in violation of the Eighth Amendment.
B. Title II of the Americans with Disabilities Act, the Americans with Disabilities Act Amendment Act, and Section 504 of the Rehabilitation Act of 1973
97. Plaintiffs also allege that Defendants have violated their rights under the ADA, as modified by the ADAAA, and the Rehabilitation Act, by “fail[ing] and refus[ing] to reasonably accommodate their disabilities while in custody,” and that this “failure and refusal put them at substantial risk of serious harm” (Doc. 1, ¶ 73.) 98. The ADA and related statutes afford certain rights to incarcerated individuals in state facilities.104

104 Here, Defendants do not contest that they are subject to Title II of the ADA, the ADAA, and Section 504 of the Rehabilitation Act of 1973:

BY MR. VORA:

And you understand that the Louisiana State Penitentiary is subject to the requirements of Title II of the Americans with Disabilities Act. Correct, sir?

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99. Title II of the ADA provides: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 100. A “public entity” includes “any State or local government” and “any department, agency, . . . or other instrumentality of a State.” 42 U.S.C. § 12131(1)(A)-(B). 101. State agencies, including Defendant Louisiana Department of Public Safety and Corrections, can be sued under Title II. See United States v. Georgia, 546 U.S. 151, 159 (2006) (holding that Title II “validly abrogates state sovereign immunity” and

BY MR. CAIN:

Yes.

BY MR. VORA:

. . . You also understand as a recipient of public federal funds, the Louisiana Department of Public Safety and Corrections is subject to Section 504 of the Rehabilitation Act, correct?

BY MR. CAIN:

Yes.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013. Defendants also do not contest that they had an obligation, under the ADA, to provide eligible inmates with an accommodation:

BY MR. VORA:

And your officers, after receiving this training, then would understand that depression is one of the types of mental illnesses, correct?

BY MR. CAIN:

I would hope.

BY MR. VORA:

And you would also hope that the correctional officers working under you at Angola would understand that these types of mental illnesses would be the types of things for which accommodations should be provided pursuant to Title II of the Americans with Disabilities Act, correct?

BY MR. CAIN:

Yes.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

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authorizes suits against States, including complaints concerning conditions of confinement in state prisons). 102. Title II of the ADA followed in the footsteps of Section 504 of the Rehabilitation Act, which provides: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” 29 U.S.C. § 794(a). The Fifth Circuit has observed:
The language of Title II generally tracks the language of Section 504 of the Rehabilitation Act of 1973, and Congress’ intent was that Title II extend the protections of the Rehabilitation Act “to cover all programs of state or local governments, regardless of the receipt of federal financial assistance” and that it “work in the same manner as Section 504.” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (quoting H.R. Rep. No. 101-485, pt. III at 49-50 (1990)) (footnotes omitted). 103. Indeed, Title II of the ADA specifically provides that “[t]he remedies, procedures and rights” available under Section 504 shall be the same as those available under Title II. 42 U.S.C. § 12133. Thus, cases interpreting either Title II of the ADA or Section 504 of the Rehabilitation Act are applicable to both. Hainze, 207 F.3d at 799. 104. The tests for determining success under the Rehabilitation Act and Title II of the ADA are substantially similar. To prove a claim under Section 504 of the Rehabilitation Act, a plaintiff must prove: (1) that he is a qualified individual with a disability; (2) that he was excluded from participation in, denied benefits of, or subjected to discrimination under the defendant’s program solely because of his
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disability; and (3) that the program in question receives federal financial assistance. 29 U.S.C. § 794(a). Similarly, to prove discrimination under Title II of the ADA, a plaintiff must show: (1) that he is a qualified individual with a disability; (2) that he has been excluded from participation in, or denied the benefits of the services, programs, or activities of a public entity, or that he was otherwise discriminated against by such entity; and (3) that such exclusion or discrimination was by reason of his disability. 42 U.S.C. § 12132; Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 428 (5th Cir. 1997).
1. Plaintiffs Failed to Introduce Evidence into the Record to Establish that They are Qualified Individuals with Disabilities
105. The ADA and the Rehabilitation Act each define disability to mean “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A); 29 U.S.C. § 705(9)(B) (“The term ‘disability’ means . . . the meaning given it in section 12102 of Title 42.”).105 106. “Major life activities” are “those activities that are of central importance to daily life.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002). 107. The Equal Employment Opportunity Commission’s regulations implementing the ADA provide a non-exhaustive list of “major life activities.” Such activities include, but are not limited to “caring for oneself, performing manual tasks, seeing, hearing,
105 In 2008, the ADA was modified by the ADAAA, Pub. L. No. 110-325, 122 Stat. 3553, which, among other things, clarified that “[t]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter,” 42 U.S.C. § 12102(4)(A), and that “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as . . . medication, [or] medical supplies.” 42 U.S.C. § 12102(4)(E)(i)(I).
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eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.” 29 C.F.R. § 1630.2(i). See also 42 U.S.C. § 12102(2)(A)(1). 108. “[T]o be substantially limited means to be unable to perform a major life activity that the average person in the general population can perform, or to be significantly restricted in the ability to perform it.” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 614 (5th Cir. 2009) (citing 29 C.F.R. § 1630.2(j)). 109. In making that determination, the EEOC has advised that courts consider: “(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” Id. at 614-15 (citing 29 C.F.R. § 1630.2(j)). 110. The evidence in the record establishes that Plaintiffs suffer from several chronic diseases. As previously noted, it is uncontroverted that Plaintiff Ball suffers from uncontrolled blood pressure, hypertension, diabetes, and obesity; Plaintiff Code suffers from hypertension, obesity, and hepatitis; and Plaintiff Magee suffers from hypertension, high cholesterol, and depression. 111. While the Court has no doubt that such diseases may limit one or more of Plaintiffs’ major life activities, the record is void of any evidence to support such a conclusion. 112. Indeed, Plaintiffs failed to introduce evidence into the record to establish that Plaintiffs chronic diseases substantially limit their ability to care for themselves,
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perform manual tasks, walk, see, hear, speak, breath, learn, working, eat, sleep, stand, lift, bend, read, concentrate, think, or communicate. Rather, the evidence introduced by Plaintiffs was limited to how the heat conditions in the death row tiers limit Plaintiffs’ major life activities, and how Plaintiffs’ underlying medical conditions put them at increased risk of developing heat-related illnesses. 113. During the trial and in their submissions to the Court, Plaintiffs described the chronic diseases that each Plaintiff suffers, and the medications that each Plaintiff is required to take. See, e.g., Doc. 53-9, pp. 11-15. However, “[m]erely having an impairment . . . does not make one disabled for purposes of the ADA.” Chevron Phillips Chem. Co., 570 F.3d at 614. Here, Plaintiffs simply failed to introduce evidence that their chronic diseases and/or medications impede their ability to perform major life activities. 114. In their submissions to the Court, Plaintiffs describe themselves as “disabled” and allege that they are “qualified individuals regarded as having physiological impairments that substantially limit one or more of their major life activities.” (Docs. 1, ¶73; 53-9, p. 11.) However, such conclusory statements and/or allegations are insufficient to establish that Plaintiffs have physical or mental impairments that substantially limit one or more major life activities. Nor are such conclusory statements and/or allegations sufficient to establish that Plaintiffs are regarded as having a physical or mental impairment that substantially limits one or more of their life activities. 115. In sum, the Court concludes that Plaintiffs have failed to establish that they are
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qualified individuals with a disability. See Chevron Phillips Chem. Co., 570 F.3d at 614. 116. Absent evidence in the record that Plaintiffs’ underlying medical conditions substantially limit one or more of their life activities, Plaintiffs have failed to establish a prima facie case for discrimination under Title II of the ADA, as modified by the ADAAA, and the Rehabilitation Act. Blanks v. SW Bell Communs., Inc., 310 F.3d 398, 400 (5th Cir. 2002) (“To establish a prima facie case for discrimination under the ADA, a plaintiff must be a qualified individual with a disability.”). Accordingly, Plaintiffs’ claims under the ADA and the Rehabilitation Act must be denied. VII. CONCLUSION
A. Declaratory and Injunctive Relief 1. “According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that he has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citing cases). 2. Here, as discussed at length above, Plaintiffs have met their burden of proving that Defendants have violated, and continue to violate, their Eighth Amendment rights. Undoubtedly, remedies available at law, such as monetary damages, are
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inadequate to compensate Plaintiffs for such injury. To support their argument that the “harm” to Defendants outweighs the injury to Plaintiffs, Defendants introduced testimonial evidence regarding the Louisiana Department of Public Safety and Corrections’ “reduced budget.” See Trial Transcript, Testimony of James M. LeBlanc, Aug. 7, 2013. However, Defendants’ purported financial hardships “can never be an adequate justification for depriving any person of his constitutional rights.” Udey v. Kastner, 805 F.2d 1218, 1220 (5th Cir. 1986). Finally, it is beyond dispute that a permanent injunction against Defendants serves the public interest in that it will enforce the fundamental rights enshrined in the United States Constitution. In sum, the Court concludes that Plaintiffs have met the test and shown “a clear threat of continuing illegality portending immediate harmful consequences irreparable in any other manner.” Posada v. Lamb County, 716 F.2d 1066, 1070 (5th Cir. 1983). Accordingly, the Court concludes that it has a “duty and obligation to fashion effective relief.” Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir. 1974); see also Swann v. Board of Educ., 402 U.S. 1, 15 (1971) (“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”). 3. Because this case concerns conditions of confinement, the Court must abide by the standards set out in the Prison Litigation Reform Act (“PLRA”). The PLRA narrowly limits the relief that a federal court may impose in prisoner suits. See 18 U.S.C. § 3626.
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4. According to the PLRA, injunctive relief “must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least instrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). 5. The PLRA further prohibits a federal court from ordering any prospective relief “unless the court finds that such relief is narrowly 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.” 18 U.S.C. § 3626(a)(1)(A). 6. According to the parties’ Statement of Undisputed Facts: “Plaintiffs have each exhausted their administrative remedy proceedings as required under the Prison Litigation Reform Act[,] 42 U.S.C. § 1997(e) . . .” (Doc. 53-1, p. 3.) See also supra note 93. 7. The Fifth Circuit has held that “[i]ntrusion of federal courts into state agencies should extend no further than necessary to protect federal rights of the parties. An injunction, however, is not necessarily made overbroad by extending benefit[s] or protection to persons other than prevailing parties in the lawsuit - even if it is not a class action - if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Prof’l Assoc. of College Educators v. El Paso County Cmty. College Dist., 730 F.2d 258, 273-274 (5th Cir. Tex. 1984) (citing Meyer v. Brown & Root Const. Co., 661 F.2d 369, 374 (5th Cir.1981)); accord Gregory v. Litton Systems, Inc., 472 F.2d 631, 633-34 (9th Cir.1972).
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8. Here, it is uncontested that Defendants may move any death row inmate to a different tier and/or cell at any time. Accordingly, the Court finds that a remedy aimed at ameliorating the heat conditions throughout the death row facility is necessary to adequately vindicate Plaintiffs’ rights, and is not overbroad. 9. Having found that the conditions of confinement at Angola’s death row constitute cruel and unusual punishment, in violation of the Eighth Amendment, the Court grants Plaintiffs request for declaratory and injunctive relief, and directs the following immediate remedial actions: 10. Defendants are hereby ordered to immediately develop a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit. 11. Defendants shall submit their plan to the Court no later than February 17, 2014 at 5:00 p.m. 12. Defendants’ plan shall include a step-by-step description as to how Defendants will: (1) immediately lower and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit; (2) maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit from April 1 through October 31; (3) monitor, record, and report the temperature, humidity, and heat index in each of the death row tiers every two hours on a daily basis from April 1 through October 31; (4) provide Plaintiffs, and other death row inmates who are at risk of developing heatrelated illnesses, with (a) at least one cold shower per day; (b) direct access to clean, uncontaminated ice and/or cold drinking water during their “tier time” and the twenty-
97
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three hours in which the inmates are confined to their cell; and (c) any and all relief that it is necessary to comply with this Court’s order and the prevailing constitutional standards. 13. Defendants are advised that financial considerations will not be considered a legitimate reason for Defendants’ failure to comply with this Court’s order. As noted above, “inadequate resources can never be an adequate justification for depriving any person of his constitutional rights.” Udey, 805 F.2d at 1220; Smith v. Sullivan, 553 F.2d 373, 378 (5th Cir. 1977) (rejecting the defendants’ argument that “lack of funds to implement the trial court’s order” justified the defendants’ failure to remedy ongoing constitutional violations); Gates v. Collier, 501 F.2d 1291, 1319 (5th Cir. 1972) (“Where state institutions have been operating under unconstitutional conditions and practices, the defense[ ] of fund shortage . . . ha[s] been rejected by the federal courts.”). 14. Defendants are further ordered to comply with Louisiana Department of Public Safety and Corrections Health Care Policy No. HC-45 and Louisiana State Penitentiary Department Regulation No. B-06-001 and immediately add Plaintiff James Magee to Angola’s “Heat Precautions List.” 15. Plaintiffs shall file a response to Defendants’ proposed plan no later than March 10, 2014 at 5:00 p.m. 16. Given Defendants’ deliberate indifference to the substantial risk of harm to Plaintiffs, and Defendants’ actions throughout the data collection period, the Court will retain jurisdiction and monitor Defendants’ implementation of the plan. Accordingly, the Court shall also appoint a Special Master to oversee Defendants’ implementation
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of the plan, and report on Defendants’ progress on a weekly basis. Fed.R.Civ.P. 53. Defendants shall bear all costs associated with the duties of the Special Master. 17. Plaintiffs and Defendants shall jointly or separately recommend candidates for appointment as Special Master no later than March 10, 2014 at 5:00 p.m. The parties’ recommendations shall be filed into the record of this matter and shall set out the qualifications of the persons so recommended. 18. Prior to the trial on the merits, the United States Department of Justice submitted a Statement of Interest of the United States (Doc. 64), advising the Court as to the additional relief available to Plaintiffs. Accordingly, Plaintiffs and Defendants shall jointly or separately file a response to the United States Department of Justice’s submission no later than March 10, 2014 at 5:00 p.m..
B. Attorneys’ Fees and Costs 19. 42 U.S.C. § 1988 states in pertinent part:
(b) Attorney’s fees In any action or proceeding to enforce a provision of section [ ] . . . 1983 . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . including attorney's fees, unless such action was clearly in excess of such officer’s jurisdiction. 42 U.S.C. § 1988(b). 20. Accordingly, Plaintiffs are awarded reasonable attorneys’ fees and costs. Counsel for Plaintiffs shall file their motion for attorneys’ fees and costs on a date to be fixed by the Court. Plaintiffs’ motion shall comply with the Federal Rules of Civil
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Procedure and the Local Rules for the United States District Court for the Middle District of Louisiana. VIII. JUDGMENT
Accordingly, IT IS ORDERED that Plaintiffs’ Motion for a Preliminary Injunction (Doc. 12) is DENIED AS MOOT. The Court concludes that the conditions of confinement at Angola’s death row constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Court further concludes that Plaintiffs have failed to establish a prima facie case for discrimination under Title II of the Americans with Disabilities Act, as modified by the Americans with Disabilities Act Amendment Act, and Section 504 of the Rehabilitation Act of 1973. Accordingly, IT IS FURTHER ORDERED that Plaintiffs’ request for declaratory and injunctive relief is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that Defendants shall immediately develop a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit. IT IS FURTHER ORDERED that Defendants shall submit their plan to the Court no later than February 17, 2014 at 5:00 p.m. IT IS FURTHER ORDERED that Defendants’ plan shall include a step-bystep description as to how Defendants will: (1) immediately lower and maintain the
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heat index in the Angola death row tiers at or below 88 degrees Fahrenheit; (2) maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit from April 1 through October 31; (3) monitor, record, and report the temperature, humidity, and heat index in each of the death row tiers every two hours on a daily basis from April 1 through October 31; (4) provide Plaintiffs, and other death row inmates who are at risk of developing heat-related illnesses, with (a) at least one cold shower per day; (b) direct access to clean, uncontaminated ice and/or cold drinking water during their “tier time” and the twenty-three hours in which the inmates are confined to their cell; and (c) any and all relief that it is necessary to comply with this Court’s order and the prevailing constitutional standards.
Defendants are advised that financial considerations will not be considered a legitimate reason for Defendants’ failure to comply with this Court’s order.
IT IS FURTHER ORDERED that Defendants shall immediately add Plaintiff James Magee to Angola’s “Heat Precautions List.”
IT IS FURTHER ORDERED that Plaintiffs shall file a response to Defendants’ proposed plan no later than March 10, 2014 at 5:00 p.m.
IT IS FURTHER ORDERED that Plaintiffs and Defendants shall jointly or separately recommend candidates for appointment as Special Master no later than March 10, 2014 at 5:00 p.m. The parties’ recommendations shall be filed into the record of this matter and shall set out the qualifications of the persons so recommended.
IT IS FURTHER ORDERED that Plaintiffs and Defendants shall jointly or
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Case 3:13-cv-00368-BAJ-SCR Document 87 12/19/13 Page 102 of 102

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 13-00368-BAJ-SCR

RULING AND ORDER

Before the Court is a Motion and Incorporated Memorandum to Requ est Judicial Notice of Administrative Prison Regulations and Louisiana Laws Requiring Climate Contro l (Doc. 55), fil ed by Plaintiffs Elzie Ball, Natha niel Code, and J a mes Magee (co ll ective ly "Plaintiffs"), see king a n orde r from t his Court taking judicia1 notice of approximately t hirty. fou r st a tutes, regulations, policies, procedures, directi ves, a nd standards from app roximately twenty -three states, including t he State of Louisia na. 1 Defendants James M. Le Bla nc, Nathan Burl Cain, Ange lia Norwood, a nd t he Louisiana Department of Public Safety a nd Cor rections (collective ly "Defendants") oppose the motion. (Doc. 60.) The Court heard oral argument on t he motion on August 5, 2013. (Doc. 75.) It is uncontested that this Court has jurisdiction over these proceedings pursua nt to 28 U.S.C. §§ 1331, 1343, a nd 2201.

1 Specifically , Plaintiffs request t he Co urt take judicial notice of statutes , regulations, policies, procedures, directives, a nd sta ndard s, related to climate control in (.'orrectional facilities, from twentytwo states. (Docs. 55·1 . 55·22 .) Plainti ffs also request the Court take judicia l notice of sections of Louisiana's statutes a nd administrative (:ode that req uire climate control in non· adult correctional facilitie s. (Docs. 55·23 . 55·34.)

In support of the motion , Plaintiffs argue that the Court may takejudicial notice of federal and state law , and administrative regulations . During the hearing on the matter, counsel for Plaintiffs conceded that the proposed statutes, regulations, policies, procedures, directives, and sta ndards are legislative facts. Thus, Federal Rule of Evidence 201 does not apply. Counsel argued, however, that pursuant to the Eighth Amendment, the Court must evaluate the conditions of confine me nt in the death row tiers at the Louisiana State Penitentiary against the evolving standard s of dece ncy that mark the progress of a maturing society. According to counsel, the proposed legislative facts are exa mples of our society's evolvi ng sta nd a rds. Thus, Plaintiffs' motion should be granted.
In opposition, Defe ndants argue that it would be improper for the Court to take judicial notice of the proposed legislative facts to establish the applicable legal standard. De fendants furth er argue that the proposed legi slative facts are inconsistent and irrelevant to Plaintiffs claims. During the hearing, co unsel for Defe ndants further argued that t he proposed legislative facts are not bindingon the Louisiana Department of Public Safety and Corrections. Thus, Pla intiffs' motion should be denied.
The legal sta ndard by which the Court must review Plaintiffs' claims is well established in re levant case law. However, "the Supre me Court has made clear that the standard against which a court measures prison conditions are 'the evolving standard s of dece ncy that mark the progress of a maturing society,' and not the sta ndard s in effect during t he time of the drafting of t he Eighth Amendment." Gates v. Cook, 376 F.3d 323, 332·33 (5th Cir. 2004) (quotin g Estelle v. Gamble, 429 U.S. 97 ,
2

102 (1976». Accord.ingly, t hi s Court m.ust meas ure the conditions ofconfinement in the death row tiers at the Louisiana State Penitentiary against "'the evolving standards of decency that mark the progress of a maturing society.'" Id. (quoting Estelle, 429 U.S . at 102).
Consideringtbe nature ofPlaintiffs' claims, the content of the proposed statutes, regulations, policies, proced ures, directives, and standards from twenty-three states, including the State of Louisiana, and the requirement that the Court evaluate the conditions of confinement in the death row tiers at the Louisiana State Penitentiary against society's evolving standards, the Court concludes that judicial notice of the proposed s tatutes, regulations, policies, procedures, directives, and standa rds is proper.
Accordingly, IT IS ORDERED that Plaintiffs' Motion and Incorporated Mernorand urn to Request Judicial Notice of Administrative Prison Regulations and Louisiana Laws Requiring Climate Control (Doc. 55) is GRANTED.
Baton Rouge, Louisiana, this 19th day of Dece mber, 2013.
BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
3

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO. : 3:13-cv-00368-BAJ-SCR

RULING AND ORDER I. INTRODUCTION
Before the Court a re two motions by Plaintiffs Elzie Ball, Na thaniel Code, a nd J a mes Magee (collectively "Plaintiffs"), seeking sanctions a gainst Defenda nts J a mes M. LeBla nc, Na tha n Burl Cain, Angelia Norwood, and t he Louisian a Depa rtment of Public Safety a nd Corrections (collectively "Defendants") for discovery violations a nd spoliation of evidence. (Docs. 62, 63.) Plaintiffs a lso request that sanctions be imposed against Defenda nts' counsel based on representa tions made t hroughout this litigation regarding discovery a nd spoliation of evidence. (Doc. 85, p. 10.) Defenda nts oppose each motion . (Docs. 66, 68.) The Court heard oral argument on Plaintiffs' motions on August 5, 201 3, (Doc. 75) , a nd, sub sequently, Plaintiffs filed reply memoranda a ddressing Defenda nts' arguments in opposition to sanction s, (Docs. 84, 85). It is uncontested that t his Court h as jurisdiction over these proceedings pursua nt to 28 U.S.C. §§ 1331, 1343, a nd 220l.
Upon t horough review, a nd for reasons fully explained below, this Court determines that sanction s a gainst Defendants are warranted based on Defenda nts'

willful, ba d fait h attempts to ma nipulate data critical to Plaintiffs' cause of action, a nd for abuses of th e discovery process.
Acco r d i n gly , IT IS HEREBY ORDERED th at Plaintiffs' Motions for Imposition of Sanctions (Docs. 62, 63) are each GRANTED IN PART and DENIED IN PART. F urther, in reviewing Plaintiffs' requests for sanctions, this Court has come to sh a re Plaintiffs' co ncerns regarding t he alarming lack of candor demonstr ate d by Defendants' counsel throughout t his litigation . Accordingly, IT IS HEREBY ORDERED th at Defendants' counsel E. WADE SHOWS, AMY L. MCINNIS, and JACQUELINE B. WILSON SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED against each personally, under Fed. R. Civ. P . 37(c); M.D . La. LR83 .2.4 a nd LR83.2.8; Louisia na Profession al Conduct Rules relate d to honesty a nd fair dealing to opposin g counsel; Louisian a Professiona l Conduct Rules related to candor to the t ribuna l; a nd this Court's inheren t powers; possible sanctions to include, but not limited to, reprima nd, ethics training, suspension, disbarment, an d/or the payment of attorneys' fees to cover t he cost of motions and discovery relate d to this proceeding. A show cause hearing on this matter sh all follow.
2

II. FACTUAL AND PROCEDURAL BACKGROUND At this point, the facts a nd procedural history in the underlying civil action
are well-establishedl Suffice for now to say that Plaintiffs are death row inmates, currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana ("Angola"), who allege that Defendants have s ubjected them to cruel and unus ual punishment in violation of the Eighth Amendment and certain statutory provisions, including t he Americans with Disabilities Act, 42 U .S.C. § 12101, et seq. , and the Reh abilitation Act, 29 U.s.C. § 794. (Doc. 1.) The gravamen of Plaintiffs' complaint is t h at Defendants have subjected them to excessive heat during the s ummer months, acted with deliberate indifference to their health and safety, and discriminated against them on the basis of their disabilities.
Against this backdrop , Plaintiffs assert the following independent, but related, bases for imposing sanctions against Defendants: (1) Defendants deliberately "undermine [d] the accuracy . .. of court-order ed data collection" related to temperature, humidity, and heat index in Angola's death row tiers , and thu s should be sanctioned for spoliation of evidence, (Doc. 63, p . 14); (2) Defendants wer e "evasive," "incomplete," a nd untimely in their responses to Plaintiffs' discovery requests regarding the cost of installing air-conditioning in the death row tiers, (Doc. 62, p . 3), and also refused to permit Plaintiffs' "shadow" expert "to bring
I For a complete s ummary of the underlying facts and procedural history, see docket entry 87 , Ball v. LeBlanc, No. 13-368, _ F.Supp.2d _ (M .D. La. Dec. 19, 2013) (hereinafter "Slip Op ., Doc. 87").
3

instrume nts into the prison to verify any of the data collection" efforts, (Doc. 63, p. 3), and thus should be sanctioned for violating the Federal Rules of Civil Procedure and this Court's discovery orders. The following facts are pertinent to Plaintiffs' allegations.
A. Defendants' attempts to "undermine the accuracy ... of courtordered data collection"
Plaintiffs' first complaint is that Defendants deliberately "undermine[d] the accuracy ... of court-ordered data collection" related to temperature, humidity, and heat index in Angola's death row tiers and, accordingly, should be sanctioned for spoliation of evidence. (Doc. 63, p . 14.)
1. The data collection period On June 18, 2013, Plaintiffs filed a Motion for Preliminary Injunction (Doc. 12), seeking a n order from this Court instructing Defendants to "maintain a heat index along the death row tiers that . . . does not pose s ub stantial risk to [plaintiffs'] health- i.e. maintain a heat index below 88° ," (Doc. 12-1, p. 28). Defendants opposed Plaintiffs' motion arguing, among other things, that Plaintiffs request for a preliminary injunction should be denied because Plaintiffs could not show a likelihood of success on the merits of their claim. (Doc. 15 pp. 8- 16.) Specifically, Defendants took issue with Plaintiffs' assertions that conditions on death row were unconstitutional based on "temperature and humidity conditions . . . [that]
4

regularly reach into the category of 'extreme danger' heat index." (Doc. 12-1, p. 3.)
Defendants stated:
As Angola does not calculate the heat index on tiers, the numbers provided by Plaintiffs in their memorandum and exhibits are simply calculations, which must be proven like any other fact. And as explained in defendants' Motion to Strike, calculations made by counsel are not competent evidence and cannot be considered. Furthermore, as will be borne out through testimony at the hearing, the calculations utilized are deficient. It is scientifically impossible to reach the heat indexes that Plaintiffs claim to exist inside the cells at Angola (even though no heat index, humidity or dew point measurements were taken inside the (acility, further questioning the reliability of the data being presented to the Court).
(Doc. 15, p . 12 (emphasis added) .)
On July 2, 2013, this Court heard oral argument on Plaintiffs' Motion for
Preliminary Injunction. (Doc. 24.) Based on Plaintiffs' claims and Defendants'
defenses, the need for current, accurate temperature, humidity, and heat index data
from Angola's death row housing tiers was obvious. Accordingly, the Court deferred
its ruling on Plaintiffs' motion pending the collection of such data by a neutral
expert, re -set the hearing on the motion, set trial on the merits, and ordered the
parties to meet, confer, and develop an accelerated joint discovery plan and
schedule. (Doc. 24.) Subsequently, the parties submitted a proposed joint discovery
schedule, which was later adopted by the Court. (Docs. 26, 28.) The discovery
schedule included the parties' joint stipulation to retain a neutral expert to collect,
5

analyze, and disseminate the temperature, humidity, and h eat index data over a 21day period to begin July 15, 2013. (Doc. 28.)
After some back and forth , the parties agreed to retain the expert proposed by Defendants, United States Risk Management, LLC. (See Docs. 31, 36.) On July 12, 2013, this Court ordered "U.S. Risk Management ... [to install] the necessary equipme nt, collectO the required data, and disseminat[e] such data," so that the temperature, humidity, and heat index in Angola's Death row could be reliably measured over a 21-day period. (Doc. 36, p . 2.) Data collection was intended to accurately capture climate conditions as they existed on Death row, without adulteration due to remedial measures undertaken by Defendants. (See Transcript, July 2, 2013 (Hearing on Preliminary Injunction) (BY THE COURT: "The goal here is to h ave 21 straight days of data."); Doc. 3 1, p . 5 (Defe ndants' Submission of Proposed Independent Expert) ("Most importa ntly, the data must be accurate so that it can be r elied upon by this Court."); Doc. 36, p. 2 (providing certain instructions to e ns ure collection of "the most accurate data"); Doc. 63-17 (email from Norwood admonishing death row supervisors "to ensure accurate and consistent temperature recording" and to avoid making adjustments to cells that would "tamper with" data collection).) This Court's July 12 Order also directed that Plaintiffs would be allowed to retain their own expert, a nd that this expert would "be permitted to shadow U.s. Risk Management during the installation of the
6

necessary equipment, and inspect the equipment at least once per week." (Doc. 36,
pp.2- 3.) 2. Defendants' modifications to the death row tiers
On July 15, the first day that data collection was set to begin, Defendant
Assistant Warden Angelia Norwood sent the following email to all Death row
Supervisors: In order to ensure accurate and consistent temperature
r ecording, all fans and windows are not to be adjusted in any manner. In addition, no offender and/or employee is to tamper with the recording devices placed on each tiers. Only authorized persons will be allowed inside the cells with the recording devices.
If you have any questions, please see me. Your assistance IS appreciated. (Doc. 63-17.) Nevertheless, despite Norwood's email, a nd this Court's emphatic
instruction "that the most accurate data ... be collected," (Doc. 36, p. 2), Defendants
undertook efforts to change the conditions in the death row tiers soon after the data collection period began.
First, under cover of night, Defendants installed awnings over the windows of death row tiers C and G. Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013 ("We worked the inmates all night long to get the awnings up .. . ."). At trial,
Defendant Warden Burl Cain testified that he ordered the awnings installed "to
sh a de the window to see what would happ en . To see if the temperature would fall." Id. Whether or not the awnings had the intended effect of reducing the
7

temperature in the selected tiers, it is uncontroverted that the awnings "shaded the window[s)." See id.; see also Doc. 85-11 , p. 39 (Deposition of David Garon).
Next, Defendants employed "soaker hoses"2 to "mistO the walls" of certain tiers, and also endeavored-albeit unsuccessfully-to "putO the sprinkler system on t he roof, [and a ) water sprinkler in the yard." Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013; Doc. 85-9, p. 34 (Deposition of Nathan Burl Cain). As with the awnings, the intent of these measures was to "cooIO " the selected death row tiers. (Doc. 85-9, p. 34 (Deposition of Nathan Burl Cain) ("We are actually misting t he walls of the building to try to see if we can get the cinder blocks to be cooler so then they won't conduct the heat all t he way through . . . .").) Again, however, it is unclear precisely what effect Defendants' efforts to "mistO the walls of the building" actually had on temperatures in the selected death row tiers.
Finally, Defendants repaired a malfunctioning vent in Plaintiff Nathaniel Code's cell one business day prior to this Co urt's scheduled site visit to Angola's death row facility. (See Doc. 85-2.)
The precise date that Defendants installed the awnings and soaker hoses on the selected death row tiers is not clear from the record. Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013 ("I don't recall the specific dates and
2 At trial, Warden Cain described the "soaker hoses" as "three-quarter inch" hoses with "half-inch" perforations to allow water to seep out. Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013. According to Cain, Defendants' attempted use of soaker hoses was uns uccessful because "the water all ran out as soon as you put it on . We didn't have enough power." Id.
S

times [that the awnings and soaker hoses were installed]."); id. (stating "I'm not exactly sure when we [installed the awnings]," and indicating that installation may have occurred in the early morning hours of Thursday, July 25, 2013 or Friday, July 26, 2013).) Nor is it clear whe n, exactly, Defendants' fixed Code's vent. (See Doc. 85-2 (suggesting that repairs occurred sometime after Code's complaints on August 8, 2013, but before Wilson's email of August 10).) A few things, however, are clear. First , the installation of awnings and soaker hoses, and the repairs to Code's vent occurred after this Court ordered Defendants to collect "the most accurate data," and after the data collection period ha d begun. (See Doc. 36, p. 2 (emphasis added); Doc. 24, p. 2; Doc. 63- 14 (July 26, 2013 email from Amy McInnis to Mercedes Montagnes stating that "awnings ... are being installed over the windows on only two tiers" (emphasis added»; Trial Transcript, Argument of Amy McInnis, Aug. 5, 2013 (,,[Tlhose awnings were erected after we-after Defendants had disclosed [to the Magistrate Judge on July 25, 2013] that this is something that we were going to do .").) Second, there is no indication in the r ecord that Defendants informed Plaintiffs or Plaintiffs' counsel of their plans to modify the death row tiers prior to the modifications being made. Third, and perhaps most importantly, Defe ndants never r equested permission from this Court to make any alterations whatsoever to the death row tiers.
9

3. Plaintiffs' discovery of Defendants' modifications On July 15, 2013- the same day that data collection began- Plaintiffs served Defendants with interrogatories requesting: (1) disclos ure of "any steps that have bee n taken, since the Complaint in the LAWSUIT was filed, related to altering climate conditions in the DEATH ROW FACILITY"; and (2) disclosure of "any changes to any of the climate control mechanisms in the DEATH ROW FACILITY that have occurred since this action was filed. " (Doc. 63-11 , p . 6 (Interrogatories Nos. 4--5) (emphasis in original).) Four days later , on July 19, Defendants responded that "since the filing of the complaint, only routine maintenance and inspections were performed on the climate control systems," but "reserve[d] the right to supplement their answer[s] at a later time." (Id.) Despite this "reserv[ation] ," Defendants failed to follow through with additional information regarding changes to the climate control mechanisms. Instead, Plaintiffs learned about Defendants' modifications through their own channels.3 Having heard rumors of modifications being made to the death row tiers , Plaintiffs' counsel emailed Defendant's counsel the following message at 3:02 p.m., July 26, 2013: Counsel,
3 It is hardly s urprising that Plaintiffs found out about Defendants efforts to modify the death row facility , given that they each live there .
10

We have received numerous reports from various sources that alterations are being made to death row. We believe these actions are designed to reduce the heat.
Can you please confirm this as soon as possible? Obviously we are entitled to this information pursuant to our discovery requests as well as our pending lawsuit.
Yours very truly,
Mercedes Montagnes
(Doc. 63-13.)
A little more than an hour-and-a-half after Montagnes sent her email, at 4:39
p.m., defense counsel Amy McInnis reported the installation of awnings, but failed
to mention the soaker hoses. Specifically, McInnis wrote:
Mercedes and all,
I think what you may [sic] referring to as "alterations" are awnings that are being installed over the windows on only two tiers. This was discussed with Magistrate Judge Riedlinger yesterday in our settlement conference. We had indicated to him that although the terms of your proposed settlement were not agreeable to our clients, that they were nonetheless committed to exploring and implementing measures that would make the inmates housed on Death Row more comfortable and that they would do so own [sic] their own, without being ordered to do so by the Court. We had specifically mentioned the possibility of installing awnings on windows on only two tiers during the monitoring period, so that we could ascertain whether such effort would have a measurable effect on temperatures on those two tiers. Judge Riedlinger indicated that he believed that this would be a good idea. It was our impression that this was being communicated to you during the settlement conference.
11

Please note that the awnings are being installed on only two tiers, not all tiers, as we want to be certain that we do not skew the data monitoring.
In the spirit of full disclosure, please see the attached pictures of the awnings being installed.
I trust that this will suffice m lieu of a formal supplemental discovery response. Regards, Amy (Doc. 63-14 (emphasis added)4) Three days later , on July 29, 2013, Defendants' counsel sent Plaintiffs' counsel Defendants' Supplemental Response to Plaintiffs' Discovery (Doc. 63-16), which, among other things, stated: "Since the filing of the complaint, the forced ventilation system was inspected and awnings were added on to tiers C and G by inmates and/or employees of LSP," (id. , pp . 6- 7.) Again, however, Defendants' counsel neglected to mention Defendants' installation of soaker hoses on certain tiers. (See generally id.) Indeed, Plaintiffs' counsel only learned of the soaker hoses when they deposed Defendant Warden Nathan Burl Cain on July 31 , 2013. (See Doc. 85-9, p. 34 (Deposition of Nathan Burl Cain).) Even after Warden Cain's deposition, Defendants' counsel failed to supplement Defendants' re sponses to Plaintiffs'
, For r easons explained, infra, defense counsels' representations to the effect that Magistrate Judge Riedlinger approved installation of the awnings are dubious.
12

interrogat ories with informat ion r ega rding Defendants' use of soaker hoses a nd/or misting devices.
Plaintiffs' counsel learned of Defe ndants' a tte mpts to repair Plaintiff Code's cell ve n t in much t he sa me way t hat t hey learned of Defenda n ts' con struction of awnings a nd installation of soaker hoses. Yet again, Defe nda n ts only informe d Pla intiffs' counsel r egarding this "ro utine m a intena nce" to Code's vent after Montagnes e m a ile d to inquire abou t work done in Code's ce ll. (See Doc. 85-2, pp. 23.) And, as before, Defe ndants' did not s upplem ent their interrogatory r esponses t o r eflect t h eir m a inte na nce to t his "climate con trol mecha nism ." (See Doc. 63-11, p . 6 .)
4. The Court' s discovery of Defendants' modifications The Court did not learn th a t Defenda n ts installe d awnings a nd soaker hoses on the death row tier s until the fin a l pre trial confere nce on July 3 1, 201 3. During t his confere nce, which was not on the record, Pla intiffs' counsel informe d the Court th at Defenda n ts h a d installed aw nings over t he windows in cer tain death row tier s, including tier s s ubj ect to the Court's da t a -collection Order . (S ee Doc. 57, p . 2.) Plaintiffs further informed the Court t hat Defenda nts h a d a tte mpted to soa k a nd/or mist some of th e tier s by spraying water on t he roof of a nd/or on the side of the buildings. (See id. )
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In response, Defendants' co unsel conceded that Defendants took such actions.
(See id.). Defendants' counsel also conceded that Defendants h a d done so without
seeking permission from the Court. (See id.) However , Defendants' counsel E.
Wade Shows asserted th at Magistrate Judge Riedlinger "knew" t hat Defendants
planned to take such actions, and also asserted that counsel informed Judge
Riedlinger of Defendants' intentions during the parties' settlement conference on
July 25.
Defendants' counsel maintained the position that Magistrate Judge
Riedlinger endorsed Defendants' modifications to the death row tiers in their
memora ndum opposing Plaintiffs' Motion for Imposition of Sanctions for
Defendants' Spoliation of Evidence, (Doc. 63). Specifically, Defendants' counsel
stated:
Plaintiffs have not and cannot demonstrate that Defend ants acted in bad faith in the installation of awnings on the windows on only two tier s of the Death Row Facility. First, Defendants' motivation in installation awnings was the same as all of the other possible solutions discussed in the July 25, 2013 settlement conference with Magistrate Judge Riedlinger-to explore all feasible solutions to alleviate effects of heat on the inmates housed on the Death Row Tiers. This good faith impetus was expressed to Magistrate Judge Riedlinger, who indicated that he thought any good faith solutions would be appreciated by this Court. During this same conference, Defendants stated that they intended to erect aw nings over t he windows to explore whether such measures would enha nce the comfort level of inmates by preventing th e glare from the sun from reflecting into their cells.
(Doc. 66, pp. 10-11 (emphasis a dded).)
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In the same memorandum Defendants' counsel r epresented to the Court that

Defendants' had fully complied with all discovery obligations, despite having failed

to inform Plaintiffs regarding Defendants' use of soaker hoses/misting devices prior

to Warden Cain's deposition. Specifically, Defendants' counsel stated:

Defendants were anything but evasive in the discovery process, as evidenced by (1) Defendants' prior notice of the awning installation during the settlement conference; (2) Defendants' prompt notification of the awning installation the same day as the installation; and (3) the fact that Plaintiffs certified to the Court on July 31 , 2013, that no discovery issues remained.

(Id., p. 12 (emphasis added) .)

On August 5, 2013, at the hearing on Plaintiffs' Motion for Sanctions,

Defendants' counsel agam laid blame with Magistrate Judge Riedlinger for

Defendants' alterations to the death row tiers. Specifically, the following colloquy

ensued between this Court, and Defendant's counsel Amy McInnis:

BY MS. MCINNIS:

And, Your Honor, the attemp ts that were made- and let me just be clear about what those attempts are. Because I think we're talking around. There were awnings that were erected. Those-

BY THE COURT:

And they were erected after I ordered the collection of the data, correct?

BY MS. MCINNIS:

Correct, Your Honor.

BY THE COURT:

No one came to me and asked for permission to make any material changes to any of the conditions during the period of time that the data was being collected, correct?
15

BY MS. MCINNIS:

That is correct , Your Honor.

BY THE COURT:

And why is that?

BY MS. MCINNIS:

Your Honor, that very remedial measure, along with several other possible ones were specifically discussed at length with Magistrate Judge Riedlinger in the 20-the July 25'h sum mary conference.

Trial Transcript, Argument of Amy McInnis, Aug. 5, 201 3 (emphasis added).

Defendants' counsel persisted in her position that Magistrate Judge

Riedlinger tacitly approved Defendants' actions even after this Court cautioned

a bout relating the contents of confidential settlement discussions.

BY THE COURT:

Let me say, Ms. McInnis. The discussions, as I appreciate it, and I don't even know the extent of those discussions, because those discussions occurred in the context of a settlement conference. Which, of course, the District Court is not privy to , a nd nor do I want to be privy to it. So, with that in mind, please proceed.

BY MS. MCINNIS:

And, Your Honor, I'm not trying to violate that rule. The reason that I mention it is only to show the court that it was ta ken in good faith. We- the er ection of the aw nings. And that those awnings were erected a fter we- after Defendants h ad disclosed that this is something that we were going to do and, in fact , do it tomorrow. So.

BY THE COURT:

I understand that. But, as I appreciate it, it was shared in the context of if we settle this case-if we settle this case, contingent upon
16

a settlement, these are the things we can and will do.

BY MS. MCINNIS:

That was not the-that's not the context in which that statement was made. It was we are going to do this outside of any court order. We are going to do in order to, as a sign of good faith. And it was our impression that it was taken that way.

ld.

Later, after the Court informed Defendants' counsel that it had

independently conferred with Magistrate Judge Riedlinger regarding his approval-

tacit or otherwise--of Defendants' actions, Defendants' counsel retreated from her

position.

BY THE COURT:

Ms. McInnis, were you present at the conference with the Magistrate Judge?

BY MS. MCINNIS:

Yes, Your Honor. I was.

BY THE COURT:

I will tell you that I have conferred with the Magistrate Judge. And he has made it very clear to me, and if necessary I will produce evidence , that he gave no party any approval to make any material changes. Now, I believe it is the case that to the extent there were discussions of the installation of awnings and other devices, that it was, again, contingent upon a settlement in the case . So, I want to ask you to be very, very careful, Ms. McInnis. Because if you tell me, as Mr. Shows told me, that the Magistrate Judge knew it and at least tacitly approved it, it will- I am obligated then to verify that.

17

BY MS. MCINNIS:

I understand.

BY THE COURT:

And if the one person who is in position to verify that doesn't verify it, then I'm in a position to impose not just sanctions on the parties. I may have to impose sanctions on counsel.

BY MS. MCINNIS:

I understand, Your Honor.

BY THE COURT:

I'm not threatening you. Now, I want to be clear about that. But I just want to be absolutely certain that everyone knows the rules.

BY MS. MCINNIS:

I understand, Your Honor. And, Your Honor , a nd I do want to be very careful a nd I do want the court to under stand what I'm saying. That what I'm saying is that we had put this forward. And I'm-what I'm representing to the court. This was donewe had given plaintiffs prior notice. I'm not offering it to say that this was a term of settlement or-because I know that those conve rsations are off limits at this time. Just to say th at t here is no culp able breach insofar as it was discussed and it was mentioned in advance.

Id.

B. Defendants' "evasive," "incomplete," and untimely responses to Plaintiffs' discovery requests regarding the cost of installing air-conditioning in the death row tiers

Next, Plaintiffs' complain th at Defendants' responses to discovery requests

regarding the cost of installing air-conditioning in the death row tiers were

18

"evasive," "incomplete," and untimely in violation of the Federal Rules of Civil Procedure and this Court's discovery orders. (Doc. 62, p . 3).
1. Putting the cost of air-conditioning at issue Almost from the outset, it was clear that the potential cost of r emedial measures was a relevant and, indeed, critical consideration to determining whether Plaintiffs' would achieve the relief that they so ught, at least in the short-term . In response to Plaintiffs' req uest for a preliminary injunction ordering Defenda nts to "maintain a h eat index below 88°," (Doc. 12-1, p. 28), Defendants took the position that "th e harm to Defendants greatly exceeds the actual likelihood of [Plaintiffs'] seriou s health problems," because remedial measures-specifically installation of air-conditioning in the death row tiers-could "only be done at a huge expense and after massive construction and installation efforts ." (Doc. 15, p . 16.)
2. Plaintiffs' attempts to discover Defendants' cost estimates for installation of air-conditioning on death row
Notably, Defendants' opposition to Plaintiffs' preliminary injunction motion did not include an actual cost estimate for the installation of air-conditioning. (See id., pp. 16- 17.) Nor did Defendants' opposition include any suggested alternatives for reducing the temperature, humidity, and heat index in the death row tiers. 5 (See generally id.) Thus, after this Court deferred ruling on Plaintiffs' r equest for a
5 Indeed, Defendants' took the position that "[t] he conditions on Death Row are not objectively serious." (Doc. 15, p. 13.)
19

preliminary injunction pending a full evidentiary hearing, (Doc. 24, p. 2), Plaintiffs included among their July 15 interrogatories questions aimed at assessing the balance of harm prong of the preliminary injunction inquiry. See La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 219 (5th Cir. 2010) ("A preliminary injunction is an extraordinary remedy that should only issue if the movant shows: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest."). Specifically, Plaintiffs' interrogatories included the following:
INTERROGATORY NO. 11: DESCRIBE IN DETAIL how YOU would be willing [sic] ensure
that the heat index on the DEATH ROW TIERS remains below 88 degrees Fahrenheit. INTERROGATORY NO_ 12:
DESCRIBE IN DETAIL the expenses associated with furnishing air conditioning on the DEATH ROW TIERS so as to ensure that the heat index on the DEATH ROW TIERS remains below 88 degrees Fahrenheit. (Doc. 62-1 , pp. 7- 8 (Interrogatories 11- 12) (emphasis in original).)
20

3. Defendants' responses to Plaintiffs' interrogatories
Despite the obvious relevance of Plaintiffs' interrogatories given Defendants'
position on the issue of air·conditioning, Defe ndants' July 19 r esponse to Plaintiffs'
discovery requests stated:
RESPONSE TO INTERROGATORY NO. 11: Defendants object to the interrogatory as written, as it seeks
information that is not relevant to a claim or defense of either party nor is it calculated to lead to the discovery of admissible evidence. Further, it presumes that a heat index below 88 degree is an optimal heat index.
Defendants reserve the right to supplement their answer at a later time.
RESPONSE TO INTERROGATORY NO. 12:
Defendants cannot answer this question, as it seeks information that it not in its possession, custody, or control.
Defendants reserve the right to supplement their answer at a later time.
(Doc. 62-2, pp. 4--5 (Responses to Interrogatories 11- 12) (emphasis in original).)
Immediately upon r eceipt of Defendants' Responses, Plaintiffs' counsel sent a
twelve-page letter to Defe nda nts' counsel, requesting a meeting "to r esolve issues
relating to the issues raised by Defendants' deficie nt discovery responses." (Doc. 62-
3, p. 1.) Plaintiffs' letter outlined each of Plaintiffs' concerns with Defendants'
Interrogatory Responses. (See id. , pp. 5- 7.) Specifically, as to Defendants'
Response to Interrogatory 11, Plaintiffs noted that Defendants' refusal to answer
was without basis because "[tJhe request plainly seeks information relating to the 21

permanent injunctive relief so ught by Plaintiffs, including without limitation the ba lan ce of the harms that Defendants have themselves contended are m Defendants' favor." (Id., p . 7.) As to Defenda nts' Respon se to Interrogatory 12, Plaintiffs' stated that despite Defenda nts' insistence that the information requested was beyond their "possession, custody, or control," Defe ndants were known to "have retained a consulting engineer to testify as an expert-thereby making clear that Defe ndants h ave information readily available and the ability to answer the Interrogatory." (ld. )
Plaintiffs' initial attempts to resolve this discovery dispute with Defendants' counsel wer e fruitless. Thus, Plaintiffs' counsel raised the iss ue again during discovery conferences with Magistrate Judge Riedlinger on July 23 and 25, 2013. (See Doc. 49, pp .1- 2.) Following these conferences, the Magistrate Judge issued an Order stating, in pertinent part:
Interrogatory Number 11: defenda nts r eq uired to s upple me nt, eve n if t he s ub stantive answer is that Defendants curre ntly do not h a ve a pla n to keep the heat index below 88 degrees F on the Death row tiers.
Interrogatory Number 12: defendants required to s uppleme nt, eve n if the substantive answer is that Defendants currently do not have an estimate of the cost to air condition the Death row tiers. (Id. , p. 2.) The Magistrate Judge further ordered that Defendants were "to file their supplemental discovery r esponses by 5:00 p.m., on July 29, 2013." (Id., p. 1.)
22

4. Further developments: Defendants' Expert's Report regarding costs of installing remedial measures on death row
On July 24, in accordance with the Court's discovery schedule, (Doc. 28, p. 2), Defendants provided to Plaintiffs the exp ert report of Henry C. Eyre, III, (Doc. 625). Defe ndants retained Eyre, a cons ulting e ngineer, "to determine the feasibility of adding cooling to the existing inmate holding cells & inma te tiers" at Angola's Death row. (Jd., p . 1.) Eyre's report- titled "Feasibility Study - Addition of Cooling"- made no ment ion of costs or expe nses, specific or general, associated with installing air conditioning in the death row tiers. (See generally id. ) Nor did Eyre's report indicate that an estimate of costs or expe nses would follow . (See generally id. )
On July 26, two days after the deadline for exchanging expert reports had passed, (Doc. 28, p. 2) , Defe nda nts' counsel provided Plaintiffs with "exhibits to the exp ert r eport submitted by Mr. Eyre ." (Doc. 62-6, p. 1.) Defendants' counsel described these exhibits as "nothing new but simply the supporting docume ntation t h at was r elied upon by [Eyre] in forming his opinion." (Jd.) Included in the exhibits wer e three cost estimates: (1) "Budget Price for (8) new air units is $ 52,000"; (2) "Budget Price for (8) new cooling coil sections with cooling coils and drain pa ns is $ 22,000"; a nd (3) "Budget Price for (8) new cooling coils only is
23

$ 14,000." (Doc. 62-7, p. 1) The exhibits also included a "Schedule of Rates" for Eyre's consulting firm. (Id., p. 31)
On July 29, Plaintiffs deposed Eyre. In his deposition, Eyre was emphatic that he could not "give total construction cost estimates" for the installation of airconditioning on the death row tiers, despite having relied upon certain estimates in creating his report. (See Doc. 62-8, p. 44.) Specifically, Eyre stated:
I can't give you the entire job estimate because, like I said already, an electrical engineer would be involved. There would be an electrical aspect. You know, I believe I state that in my report, and I don't-I'm not qualified to estimate those costs so I'm just one piece to the puzzle. (Doc. 62-8, p. 42); I can't give you a final- I can't give you a number because any number would not be a knowledgeable- I wouldn't have all of the information. (Id. , p. 43); Again, I can't give you a complete project cost estimate. I just can't. .. . There's so many different scenarios on how- the total construction cost estimate to give that I'm not qualified to give you on all of those other disciplines. (Id., pp. 43- 44); and again, I don't give total construction cost estimates. (Id. , p . 44.)
24

5. Defendants' supplemental responses to Plaintiffs' interrogatories
Also on July 29, the same day that Plaintiffs deposed Eyre, Defendants
produced their Supplemental Responses pursuant to Magistrate Judge Riedlinger's
Order. (Doc. 62·4.) In pertinent part, these Responses stated:
RESPONSE TO INTERROGATORY NO. 11:
Defendants do not believe that the question of maintenance of the heat index below 88 degrees answers the ultimate question of how to ensure that Plaintiffs are not at risk of suffering heat· related m edical problems. Defendants think a more appropriate inquiry is to consider various measures (in addition to those currently provided) designed to ensure that Plaintiffs ' body temperatures are not elevated to a level that j eopardizes their health during the summer months. Defendants do not currently have a plan to keep the heat index below 88 degrees on the Death Row Tiers.
RESPONSE TO INTERROGATORY NO. 12:
Defendants have no personal knowledge as to the information sought in the request. However, the report of Defendants' exp ert, Henry C. Eyre, III, discusses generally the services of various professionals and/or vendors needed to undertake such an enormous task. Specific costs associated with each of these professionals and/or vendors and the construction of the system desired by Plaintiffs would need to be obtained individually.
(Id., pp . 7- 8 (emphasis in original).) Notably, despite the specific cost estimates
included in the exhibits to Eyre's Report, Defendants' responses still did not include
a ny cost estimates, or any indication that cost estimates would be forthcoming,
except to provide a general disclaimer that "Defendants are prese ntly in the process
of gathering additional information and documents that are responsive to plaintiffs'
25

requests. Defendants will supplement these responses to produce those documents
as soon as possible." (Id. , p . l.)
On July 31, 2013, the Court and the parties convened for the final pretrial
conference. (Doc. 57.) Still not satisfied that Defendants had complied with their
discovery obligations, Plaintiffs' counsel sought, and wer e granted, "leave to file one
or more motions, related to the evidentiary and discovery issues discussed during
the pretrial conference." (Doc. 57, p . 2.) This Court ordered that Plaintiffs' motions
were due by 12:00 p.m. on Friday, August 2, 2013. (Id.)
6. Defendants' Expert's Supplemental Report with cost estimates included
After all this, at 6:00 p.m. on Thursday, August 1, 2013, Defendants produced
"Henry Eyre Ill's supplemental report in the form of an email," stating Eyre's
opinion that "the potential Mechanical Construction cost could reach as high as
$1,860,000.00," (Doc. 62-9, p. l.) In full , this "supplemental report in the form of an
email," provided:
Jackie,
Assuming the highest tonnage of the potential HVAC solutions, and the higher of the range of equipment installations of this caliber, the potential Mechanical Construction cost could reach as high as $1 ,860,000.00. This would have an engineering fee of $203,574.00. I have added a renovation factor to the design fee calculation to assume worst case, however this would be at the discretion of the state. I have attached the State of Louisiana fee calculator that shows this computation. If you need anything further in regard to this matter please let me know.
26

(Jd. ) Notably, Defendants produced Eyre's supplementa l r eport one day after the July 31 deadline to take expert depositions had expired, and one business day before: (1) the eviden tiary hearing on Plaintiffs' Motion for Preliminary Injunction; a nd (2) trial on the merits of Plaintiffs' Complaint. (Doc. 28, p . 2.)
C. Defendants' refusal to permit Plaintiffs' "shadow" expert "to bring instruments into the prison to verify any of the data collection" efforts
Last, Plaintiffs' allege that Defendants violate d t his Co urt's discovery order by refusing to permit Plaintiffs' "shadow" expert, David Garon, "to bring instruments into the prison" for the purpose of "verify[ing] the te mp erature and humidity levels being taken a nd to ensure that Defendants had not tampered with the equipment." (Doc. 63, pp. 3- 4.)
1. Plaintiffs' request for a "shadow" expert On July 9, 2013, the parties filed their joint Proposed Discovery Order , (Doc. 26), outlining a joint proposed discovery schedule, certa in stipulations, and a n agreed upon data collection plan, (id., pp. 1-3) . Also included in this document was a r equest by Plaintiffs for permission "to send in an identified designee to verify the temperatures that are being taken and to insure that the instruments in Defendants' possession have not suffered any tampering once per week for the three week s of data collection," (id., p. 3). Defendants opposed this request for a variety of
27

reasons, including that it was unduly "burdensome" and, in any event, "duplicitous."
(Jd.) Initially, the Court denied Plaintiffs' request, stating that "such weekly
monitoring shall be conducted by the [parties'] mutually-agreed upon expert." (Doc.
28, p. 4.) However, on July 12, after a status conference in which the parties agreed
that U.S. Risk Management would serve as the neutral expert to collect data on the death row tiers, this Court relented a nd allowed Plaintiffs to retain a "sh a dow" expert to m onitor the data collection. Specifically, t his Court ordered:
Plaintiffs sh all be permitted to retain an own expert to shadow U .S. Risk Management. Plaintiffs sh all identify one individual, who shall be permitted to shadow U.S. Risk Management during the installation of the necessary equipment, and inspect the equipment at least once per week. However, Plaintiffs shall bear all costs of retaining such expert. (Doc. 36, p. 2.)
2. Plaintiffs' request that their "shadow" expert be allowed to bring monitoring equipment to death row
The same day t hat this Court issued its Order granting Plaintiffs' request to retain a "sh adow" expert, Plaintiffs' counsel emailed Defendants' counsel to disclose that Plaintiffs' "intend to use as our 'shadow' expert David Garon of Consolidated Balancing Services, Inc. ," and to request "confirm [ation] that arrangeme nts will be made so that Mr. Garon will be able to bring in his own equipment to engage in the necessary shadow measurements." (Doc. 63-3, p. 2.) Shortly thereafter,
28

Defendants' counsel responded to confirm that they would "checkD with the facility regarding your requests as to Mr. Garon." (Jd., p. 1.) A half-hour later, however, Defendants' counsel emailed to "adviseD that Mr. Garon will not be allowed to bring his own equipment during his shadowing visits." (Jd.) After some additional back and forth , Defendants' counsel sent an email elaborating that Defendants' refusal was due to Plaintiffs' request "being outside of the scope" of the parties' discussions at the status conference and this Court's Order. (Jd.) Defendants' co unsel explained:
At no point was it ever requested that the "shadow" expert be allowed to bring his own instruments and act as a check on the third-party neutral expert. In fact, the Court's minute entry does not support your assumption that the "shadow" would bring in his own equipment and spot check. (Jd.) Despite Defendants' initial protestations, Plaintiffs' concede that "Garon was sub sequently able to bring .. . his instrument[s into the prison] on two occasions," (Doc. 85, p. 4), but only after Plaintiffs submitted to Defendants a formal Request for Entry Upon Land For Inspection, (Doc. 63-5; see also Doc. 63-6, p . 1 (Defendants' Response to Plaintiffs Request for Entry Upon Land for Inspection, stating "Defendants will agree to allow reasonable instrumentation that does not pose a security risk which are necessary to perform the inspections agreed upon") .
29

III. DISCUSSION A. Spoliation of Evidence
Plaintiffs' claims for sanctions for spoliation of evidence relate to "Defendants ... various actions since the filing of this lawsuit, and especially during the threeweek Court-ordered data collection period, seeking to lower the temperature on the Death Row Tiers." (Doc. 85, p. 1). In particular, Plaintiffs seek sanctions based on Defendants' installation of awnings, Defendants' installation of soaker hoses, and Defendants' maintenance to Plaintiff Code's cell vent. (See Doc. 63, pp . 5- 10.)
A federal court has the inherent power to sanction a party who has abused the judicial process. Chambers v. NASCa, Inc. , 501 U.S. 32, 44 (1991). Spoliation of evidence is among the offenses for which a court may assess sanctions using its inherent powers. See Hodge v. Wal- Mart Stores, Inc., 360 F .3d 446, 449 (4th Cir. 2004) ("The imposition of a sanction .. . for spoliation of evidence is an inherent power of federal courts."). "Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999»; see also Black's Law Dictionary 1531 (9th ed. 2009) . Before a Court may sanction a party for spoliation of evidence, the party seeking the sanction must show: (1) the existence of a duty to preserve the evidence;
30

(2) a culpable breach of that duty; and (3) resulting prejudice to the innocent party. Ashton v. Knight Transp., Inc. , 772 F. Supp. 2d 772, 800 (N.D. Tex. 2011).
1. Defendants' duty to preserve conditions in the death row tiers
"[IJt is beyond question that a party to civil litigation has a duty to preserve relevant information .. . when that party h as notice that the evidence is r elevant to litigation or should h ave known that the evidence may be relevant to future litigation ." John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008) (ci ting Fujitsu Ltd. v. Fed. Express Corp. , 247 F.3d 423, 436 (2d Cir. 2001) (quotation marks and a lter ation omitted).
At t he outset, Defendants' "acknowledge t hat they ... wer e under a co urtordered obligation to preserve the data collected" during the data collection period. (Doc. 66, p. 9; see also id., p. 10 ("[TJhere is no dispute as to the obligation of the parties to preserve the U.S. Risk Management data collection.").) Although Defendants' concession does not go so far as to acknowledge a duty to preserve t h e status quo in the death row tiers during the data collection period, this Court has little trouble determining: (1) Defendants' obligation was precisely to preserve the status quo during the data collection period; and (2) Defendants understood their obligation as such .
First, given the nature of Plaintiffs' claims, this Court r epeatedly emphasized t he necessity for "the most accurate data" reflecting co nfinement conditions in
31

Angola's death row tiers. (See Doc. 36, p. 2; see also Transcript, July 2, 2013 (Hearing on Preliminary Injunction).) It is simply untenable to suggest that this imperative could be accomplished if Defendants were not also obliged to avoid modifying the death row tiers in such a way as to affect cell temperatures during the data collection period.
Second, Defendants' own communications indicate that they appreciated the necessity of collecting accurate data during the data collection period, (Doc. 31, p. 5 (Defendants' Submission of Proposed Independent Expert) ("Most importantly, the data must be accurate so that it can be relied upon by this Court.")), and, even more significantly, that Defendants understood this obligation to be concurrent with an obligation to avoid making any modifications that could possibly affect the measurements being taken. Assistant Warden Norwood's admonishment to avoid adjusting fans and windows "in any manner" would be an empty letter if Defendants also believed that they could make structural changes to the death row tiers aimed at reducing cell temperatures . (Doc. 63-17 ; see also Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013 (Norwood's acknowledgement that she "had a duty to obey the court's order and to not engage in any action that might interfere with the court's collection of . . . data").)
In sum, it is inescapable that the status quo condition of Angola's death row tiers was "evidence ... relevant to [this) litigation." See Goetz, 531 F.3d at 459.
32

Accordingly, Defendants' conceSSIOn and common sen se dictate that Defendants
were under a duty to avoid making modifications to the death row tiers during the
data collection period.6
2. Defendants' culpable breach of their duty to preserve the status quo
Because t he Court is proceeding according to its inherent a uthority, Plaintiffs
must show "bad faith or willful abuse of the judicial process" in order to prove that
Defenda nts committed a culpable breach of their duty to preserve the status quo
conditions on death row . Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990).
The Fifth Circuit has opined that the spoliation doctrine's "bad faith" requirement
entails the intentional destruction of important evidence whose contents is
unfavorable to the destroyin g party. See Whitt v. Stephens Cnty., 529 F.3d 278, 284
(5th Cir. 2008). In a simila r vein, this Court has previously described "bad faith" as
"act[ing] with fra udulent intent and a desire to suppress the truth." Consolo
Aluminum Corp. V. Alcoa, Inc., 244 F.R.D . 335, 344 (M.D. La. 2006).
Under either of these articulation s, this Court h as little trouble determining
that Defendants' construction of awnings and installation of soaker hoses exhibited
6 Although not entirely clear from the record , it appears that Defendants repaired Plaintiff Code's malfunctioning vent sometime ar ound August 9, 20l3- in other words, after the data collection period ha d ended. (Doc. 85-2, p. 2.) Thus, while this Court entertains doubts regarding Defendants' motives in repairing the ve nt given the close proximity between the repairs and the undersigned's August 12 site visit, it cannot say t hat the repa irs violated Defendants' duty to maintain the status quo on death row throughout the data collection period . It is another matter whether Defendants' failure to update t heir responses to Plaintiffs' interrogatories regarding this maintenance was a discovery violation.
33

"bad faith." First, although the precise date that Defendants installed the awnings and experimented with the soaker hoses is unclear from the record, (see Transcript, Aug. 6, 2013 (Testimony of Warden Burl Cain) (stating "I don't recall the specific dates and times [that the awnings and soaker hoses were installed]."); id. (stating "I'm not exactly sure when we [installed the awnings] ," and indicating that installation may have occurred in the early morning hours of Thursday, July 25, 2013 or Friday, July 26, 2013)) , it is abundantly clear that Defendants' manipulations occurred after this Court ordered that "the most accurate data ... be collected," and after the 21-day data collection period had commenced. (See Doc. 36, p. 2 (ordering Defendants to retain U.S. Risk Management) ; Doc. 24, p. 2 (ordering Defendants to collect data from the death row tiers for a period of 21 days beginning on July, 15, 2013).)
Second, it is not beyond the Court's notice that Defendants' chose to modify tiers C and G-the two death row tiers exhibiting the highest recorded temperatures and heat indices, (see Slip Op. , Doc. 87 at pp. 23- 40)-and that Defendants made their modifications under cover of darkness.
Finally, and most significantly, Defendants' stated purpose for installing the awnings and soaker hoses was to manipulate the very data that they concede they were "oblig[ed] to preserve ." (Doc. 66, p. 9.) Warden Cain testified at trial that he ordered the awnings installed "[t]o see if the temperature would fall." Trial
34

Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013; see also Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013 (stating t hat the awnings were installed "to see if it would make a difference as far as providing shade over the windows, to see if it would cool- to see if it would make a difference, as far as the temperature, to bring it down"). Likewise, at his deposition, Warde n Cain stated "[w]e are .. . misting the walls of the building to try to see if we can get the cinder blocks to be cooler so then they won't conduct the heat all the way through." (Doc. 85-9, p . 34.) Certainly, had Defendants' achieved their goal of cooling the temperatures in the death row tiers, they would have ameliorated data unfavorable to their position, and reaped data more favorable to their position. This Court simply cannot ignore Defendants' brazen attempt to "suppress the truth" regarding the temperatures in the death row t ier s. Consolo Aluminum Corp., 244 F .R.D. at 344; see Whitt , 529 F.3d at 284.
Defe ndants insist that the bad faith element is not satisfied here because: (1) they "never intended to undermine or otherwise interfere with the termperature [sic] and/or humidity r eadings by U.S. Risk Management," (Doc. 66, p . 11); (2) they installed the awnings and soaker hoses in a "good faith" atte mp t "to explore all feasible solutions to alleviate effects of heat on the inmates housed on the Death Row Tier s," (id. , p . 10- 11)7; a nd, in any event, (3) they "have not deprived Plaintiffs
7 Defendants' counsel further states that "[t]his good fa ith impetus was expressed to Magistrate Judge Riedlinger, who indicated that he thought any good faith solutions wo uld be appreciated by
35

of any evidence whatsoever" because U[t]hey did not destroy a ny evidence," (id., p . 11).
The Court is not convinced by any of Defe ndants' protestations . First, Defendants' insiste nce that their actions were "never intended to undermine or otherwise interfere with the termperature [sic] and/or humidity r eadings" is flatly contradicted by Warden Cain's testimony that Defendants' actions were taken U[t]o see if the temperature would fall."
Second, Defendants' insistence that they were merely uexplor[ing] all feasible solutions to alleviate effects of heat on the inmates housed on the Death Row Tiers," is belied by: (1) Defendants' decision to undertake such efforts only after the Courtordered data collection period had begun, despite having been on notice of Plaintiffs' complaints r egarding the heat on death row since at least the preceding year, see Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013 (indicating that Norwood received as many as thirteen prisoner ARPs complaining about "heat" since February 2011); (2) Defendants' decision to "explore" remedial efforts designed "[t]o see if the temperature would fall ," rather than investigating alternatives that would not impact data collection in the tier s, s uch as providing additional ice chests to prisoner s , or access to cold shower s; (3) Defendants' decision to target the two tiers with the highest temperatures and heat indices in their uexplor[ations]" ; and
this Court." (Doc. 66, p. 1l.) This attem pt to lay bla me for Defendants' actions at the Magistrate Judge's door is indicative of t he lack of candor for which Defendants' counsel is being ordered to show cause for why sanctions should not be imposed against each individually. infra.
36

(4) Defe ndants' decision to target tiers occupied by inmates and specified for data collection despite the exist ence of unoccupied, unmeasured tiers that co uld have served as control experim ents, (see Slip Op ., Doc. 87 at pp. 2, 23- 40). More fundamentally, Defendants' stance that they wer e mer ely "explor[ing] all feasible solutions to alleviate effects of heat on the inm a te s housed on the Death Row Tiers," is at odds with the position Defendants' took throughout the course of this litigation, specifically that "[t]he conditions on Death Row are not objectively serious." (Doc. 15, p. 13.)
Finally, for reasons discussed more fully in the Court's analysis of whether Plaintiffs suffered prejudice as a result of Defendants' manipulations, infra, this Court is not at all satisfied that "Defendants ... have not deprived Plaintiffs of any evidence whatsoever ," nor "destroy [ed] any evidence." To the contrary, although the temperature, humidity, and heat index each remained da ngerously high after Defendants' installation of awnings and soaker hoses, the Court cannot be sure that the r eadings would not have been higher absent Defendants' actions. Indeed, Plaintiffs' expert David Garon testified in his deposition that the awnings "should stop the sun from coming in the windows," which, in turn, could alleviate "solar radiation issues." (Doc. 85-11, p. 38.) When asked to clarify, Garon stated:
[W]hen the sun beats on the windows and they get hot and the air passes over it, it's almost like a heater . So if you get the sun off of there, it might help. And it should help keep the sun from penetrating into the jail cell for sure . I would expect that to happen.
37

(Id.) Additionally, Plaintiffs have submitted unrebutted evidence indicating that after the awnings were installed on tier C, the temperature variations between tier C (with awnings) and tier A (without awnings) were less significant than the variations between the two tiers before the installation of awnings on tier C. (Doc. 85-10.)
Quite simply, the Court finds Defendants' protestations that they acted in "good faith" when installing the awnings and soaker hoses to be incredible. Defendants' chosen structural modifications, combined with their stated reasons for making them, make it quite clear that Defendants' breached their duty to preserve the status quo on death row with the goal of thwarting accurate measurement of temperature, humidity and heat index. This intentional, and by Plaintiffs' unrebutted account successful, destruction of unfavorable evidence is quite sufficient to satisfy the "bad faith" standard. See Whitt, 529 F.3d at 284; Consolo Aluminum Corp., 244 F .R.D. at 344.
3. Prejudice to Plaintiffs In assessing prejudice, a Court may consider whether a party "was precluded from obtaining much more reliable evidence tending to prove or disprove the validity [of his position] ." Flury v. Daimler Chrysler Corp., 427 F.3d 939, 946 (11th Cir. 2005). Although the Court cannot assess the full extent of the prejudice Plaintiffs suffered as a result of Defendants' manipulations, it is satisfied that
38

Plaintiffs suffered at least some prejudice . The temperature, humidity, and heat index were each dangerously high in the impacted tiers prior to Defendants' modifications, and each remained dangerously high after the installation of awnings and soaker hoses. However , Plaintiffs' unrebutted evidence shows that the temperatures in the selected tiers may have been gone higher but for Defendants' installation of awnings- at least in tier C. (See Doc. 85-10.) Accordingly, while this Court cannot say that Defendants' actions were "highly prejudicial" to Plaintiffs' case, see Silvestri, 271 F.3d at 594 (indicating that spoliation was "highly prejudicial" where "[i]t denied [defendant] access to the only evidence from which it could develop its defen ses adequately"), Plaintiffs have produced sufficient unrebutted evidence to conclude that they were "precluded from obtaining much more reliable evidence tending to prove or disprove the validity [of their position]." Flury, 427 F.3d at 946.
4. Remedy Being satisfied that Plaintiffs have made out a claim for spoliation based on the installation of awnings and soakers hoses at the death row tiers, the question becomes what sanctions to impose. Pursuant to its inherent powers, a court has broad discretion in crafting a remedy for ab uses of the judicial process. See Chambers, 501 U.S . at 44-45. However, the remedy must be proportionate to both the culpable conduct of the guilty party and resulting prejudice to the innocent
39

party. See id. ("A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process."); see also Anderson v. Beatrice Foods Co., 900 F.2d 388, 395 (1st Cir. 1990) ("[A] trial court confronted by sanctionable behavior should consider the purpose to be achieved by a given sanction and then craft a sanction adequate to serve that purpose.... [T]he judge should take pains neither to use an elephant gun to slay a mouse nor to wield a cardboard sword if a dragon looms. Whether deterrence or compensation is the goal, the punishment should be reasonably suited to the crime."). When the sanctionable conduct is spoliation of evidence, an appropriate sanction should: "(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party." West v. Goodyear Tire & Rubber Co. , 167 F .3d 776, 779 (2d Cir. 1999) (quotation marks omitted).
Plaintiffs request that multiple sanctions be imposed on Defendants, ranging from judgment in their favor, to the imposition of a rebuttable presumption, to the assessment of fees and costs attendant to Plaintiffs' motion for sanctions for spoliation. (See Doc. 63, p. l.) Ultimately, while the Court condemns Defendants' bad faith efforts to subvert collection of data and discovery in the strongest terms, it
40

remams mindful of the Supreme Court's admonishment to exercise its discretion prudently . See Chambers , 501 U.S. at 44--45.
Here, despite Defendants' efforts to lower the temperature in the selected tiers, the data produced in the collection period remains compelling, and is more than sufficient to sustain Plaintiffs' claim that they are being subjected to unconstitutional conditions of confinement, even after the awnings and soaker hoses were installed. (See Slip Op ., Doc. 87 at pp. 32- 36.) Accordingly, the Court determines that neither the extreme sanction of judgment in Plaintiffs' favor , or an adverse inference, is necessary. Instead, the Court shall impose upon Defendants Plaintiffs' legal costs for preparing their Motion for Spoliation (Doc. 63) and Reply (Doc. 85) , as well as any costs of discovery or fees attendant to the preparation of those filings.
B. Discovery Violations Next, Plaintiffs seek sanctions against Defendants under Federal Rules of Civil Procedure ("Rule") 26 and 37 for violation of their discovery obligations. Specifically, Plaintiffs seek sanctions based on Defendants' failure to timely produce cost estimates related to the installation of air-conditioning in the death row tiers despite repeated requests, Defendants' failure to supplement their disclosures with information regarding installation of soaker hoses and maintenance to Plaintiff
41

Code's cell vent, and Defendants' r efusal to permit Plaintiffs' "shadow" exp ert access
to the death row tiers with his measuring equipment.
1. Defendants' breach of discovery obligations
Rule 26 establishes the general rules regarding parties' duty to disclose. Rule
26(a) provides, in pertinent par t:
[AJ party must, without awaiting a discovery r equest, provide to the other parties: ... a copy---{)r a description by category and location---{)f a ll docume nts, electronically stored information, and tangible things that the disclosing pa rty has in its possession, custody, or control and m ay use to support its claims or defenses.
Fed. R. Civ. P. 26(a)(1)(A)(ii). Further, this duty to disclose is ongoing. Specifically:
A party who has made a disclosure under Rule 26(a)---{)r who has r esponded to a n interrogatory, request for production, or request for admission- must supplement or correct its disclosure or r esponse:
(A) in a timely ma nner if the party learns that in some material r espect the disclos ure or response is incomplete or incorrect, and if t h e additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
Id. at 26(e)(1).
The rules regarding disclos ure of expert t estimony are also established by
Rule 26(a) . All parties are required to "disclose to the other parties the identity of
a ny witness it may use at trial to present evidence ." Id. at 26(a)(2)(A). Further,
42

"[u]nless otherwise stipulated or ordered by the court, this disclosure must be
accompanied by a written report" that contains, among other things:
(i) a complete statement of all opinions the witness will express and the basis and r easons for them; [and]
(ii) the facts or data considered by the witness in forming them;
Id. at 26(a)(2)(B). "A party must make these disclosures at the times and in the
sequence that the court orders." Id. at 26(a)(2)(C) . Finally, as with all other
disclosures under Rule 26(a), parties have an obligation to supplement their
disclosures regarding expert testimony. Id. at 26(a)(2)(E). As it relates to expert
testimony, Rule 26 states:
For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to s upplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
Id. at 26(e)(2); see also id. at 26(e)(1).
Rule 37 outlines sanctions that a court may impose upon parties for failing to
fulfill their discovery obligations under Rule 26. See Fed. R. Civ. P. 37. Rule 37
also provides for sanctions where a party has failed to comply with Court imposed
discovery obligations. Id. at 37(b). Rule 37(c) provides:
If a party fails to provide information or identify a witness as r equired by Rule 26(a) or (e) , the party is not allowed to use that information or witness to s upply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
43

In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions .... Fed. R. Civ. P. 37(c) . Finally, Rule 37(d) provides that the district court "must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fe es, caused by the failure , unless the failure was substantially justified or other circumstances make an award of expenses unjust." Id. at 37(d)(3). Here, the Court again determines that sanctions against Defendants' are appropriate based on Defendants' failure to timely disclose information regarding the cost of installation of air-conditioning in Angola's death row tiers. Defendants' put the cost of installing air-conditioning at issue from the outset by their insistence that Plaintiffs could not satisfy the standard for injunctive relief because the balance of harms- particularly the cost of installing air-conditioning-favored Defendants' position. Defendants then repeatedly refused to answer Plaintiffs' interrogatories aimed at assessing Defendants' estimate of the cost of installation, to the point that Plaintiffs' requested, and received, an order from the Magistrate Judge compelling Defendants' to answer their questions, even if the answer was
44

simply that "defendants currently do not have an estimate of the cost to aIr condition the Death Row Tiers." (Doc. 49, p . 2.) Still, eve n after the Magistrate Judge's Order, Defe nda nts' refused to produce a cost estimate. Instead, at his deposition, Defendants' expert witness a damantly and repeatedly insisted that he was utterly una ble to provide s uch a n estimate. (See Doc. 62-8, pp . 42- 44.) Nonetheless, one day after the July 31 deadline for deposing expert witnesses had passed, a nd one business day before trial was set to begin , Defendants' produced Eyre's emailed "report" stating that "the potential Mechanical Construction cost could r each as high as $1 ,860,000." (Doc. 62-9.) This "report" did not reference Eyre's original r eport, and provided little independent basis for its cost estim ate, except to say that it included "a n engineering fe e of $203,574.00." (Jd.)
Eyre's "supplemental report in t he form of an email" was relevant to Defendants' defenses, respon sive to Plaintiffs' discovery requests, and certainly expressed a n expert "opinion" that Defenda nts' intended to rely on. Further, there is simply no reason why this bare-boned "opinion" could not h ave been generated prior to the expiration of the deadline for deposing expert witnesses, and prior to the eleve nth hour in the timeline to trial. At a minimum, Defendants' failure to produce this report earlier prejudiced Plaintiffs' ability to prepare for Eyre's deposition.
45

The Court further finds that sanctions are appropriate based on Defendants' failure to supplement their responses to Plaintiffs' interrogatories with information regarding the installation of soaker hoses on the selected death row tiers. At trial, Warden Cain testified that the soaker hoses were installed "at the same time" as the awnings. Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013 . However, while Defendants' eventually supplemented their interrogatory responses to include information about the awnings, they never updated their responses to report Defendants' installation of soaker hoses despite the fact that such information was directly responsive to Plaintiffs' inquiries regarding "any steps that have bee n taken ... related to altering climate conditions in the DEATH ROW FACILITY." (See Doc. 63-16, pp. 6-7 (emphasis in original).) Instead, Plaintiffs' learned about the soaker hoses only when they deposed Warden Cain. Lacking this information in advance, Plaintiffs were, at a minimum, prejudiced in their ability to prepare for Warden Cain's deposition.
On the other hand, the Court will not impose sanctions based on Defendants' failure to supplement their disclosures with information regarding maintenance to Plaintiff Code's cell vent. Rule 26 states that supplemental disclosure is required "if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P . 26(e)(1)(A). In this instance, Plaintiffs' were not prejudiced by Defendants' failure to
46

supplement their interrogatory responses regarding the vent maintenance because maintenance occurred after the evidentiary hearing and trial on the merits of Plaintiffs' Complaint.
Likewise, the Court declines to sanction Defendants for their initial refusal to allow Plaintiffs' "shadow" expert access to the death row tiers with his measurement equipment. Although Plaintiffs' assert that Defendants agreed to their request that Garon be allowed to bring his instruments into death row as part of the compromise reached to retain U .S. Risk Management, (see Doc. 63, pp. 3- 4), this Court's July 12 Order does not reflect that understanding, (see Doc. 36, p . 2). Instead, this Court's Order states merely that Plaintiffs' expert "shall be permitted to shadow U.S. Risk Management during the installation of the necessary equipment, and inspect the equipment at least once per week." (Jd.) Although the Court certainly understands Plaintiffs' position that lacking instrumentation, Garon could not "meaningfully 'shadow' the Court appointed expert"-in other words, verify the accuracy of the data collection, (Doc. 63, p. 4)-Defendants' position that the Court's Order only allowed Garon access without his equipment is not unreasonable . Further, Plaintiffs concede that Garon was eventually allowed to access the death row tiers with his equipment in hand. (Doc. 85 , p. 4.)
47

2. Remedy When considering sanctions under Rule 37, particularly under Rule 37(b), a district's court's discretion is limited by "two standards---one general and one specific." Compaq Computer Corp. u. Ergonome Inc. , 387 F.3d 403, 413 (5th Cir. 2004). "First, any sanction must be 'just'; second, the sanction must be specifically related to the particular 'claim' which was at issue in the order to provide discovery." Id. (q uoting Ins. Corp . of Ireland, Ltd. u. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982». Here again, the Court determines that a "just" sanction is to assess attorney's fees and costs related to Defendants' failure to respond to Plaintiffs' requests for information regarding the cost of installing air-conditioning, as well as the installation of soaker hoses. See id.
C. Counsels' lack of candor to Plaintiffs' counsel and the Court Before concluding, this Court takes a moment to address its grave reservations regarding defense counsels' conduct in the co urse of this litigation. In assessing Plaintiffs' motions for sanctions, it appears that Defendants' counsel deliberately dodged requests for information related to the cost of installing airconditioning; avoided turning over to Plaintiffs' information regarding Defendants' installation of soaker hoses; and, when confronted with information regarding Defendants' willful attempts to manipulate data collection in the death row tiers,
48

excused Defendants' behavior by creating the impression that remedial measures were approved and encouraged by Magistrate Judge Riedlinger . In light of defense co unsel's various representations to opposing counsel and this Court- particularly those which suggested that the Magistrate Judge endorsed and approved Defendants' attempts to manipulate data collection in the de ath row tiers when, in fact, no such approval was given- there appears to be a basis to sanction Defendants' counsel individually for lack of candor to the tribunal and lack of candor to opposing counsel. IV. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiffs' MOTIONS FOR SANCTIONS (Docs. 62, 63) are each GRANTED IN PART and DENIED IN PART. Plaintiffs' Motions are GRANTED to the extent that they seek reimbursement of attorney's fees and costs. Defendants' SHALL REIMBURSE Plaintiffs the full value of all attorney's fees and costs associated with the evidentiary and discovery violations described in this Order. Plaintiffs Motions are DENIED to the extent that they seek additional relief. IT IS FURTHER ORDERED that Plaintiffs' shall file a motion for attorneys' fees and costs within 30 days of the date of this Order. Such motion shall
49

comply with the Federal Rules of Civil Procedure and the Local Rules for the United States District Court for the Middle District of Louisiana.
IT IS FURTHER ORDERED, in light of the Court's serIOUS concerns regarding defense counsels' lack of candor, that Defendants' counsel E. WADE SHOWS, AMY L. MCINNIS, and JACQUELINE B. WILSON SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED against each personally, under Fed. R. Civ. P. 37(c); M.D. La. LR83.2.4 and LR83.2.8; Louisiana Professional Conduct Rules related to candor to the tribunal (specifically, Rules 3.3, 8.3, and 8.4); Louisiana Professional Conduct Rules related to honesty and fair dealing to opposing counsel (specifically, Rules 3.4, 4.1, and 8.4); and this Court's inherent powers; possible sanctions to include, but not limited to, reprimand, ethics training, suspen sion , disbarment, a nd/or the payment of attorneys' fees to cover the cost of motions and discovery related to this proceeding.
IT IS FURTHER ORDERED that this Order to Show Cause, and the facts contained herein, SHALL SERVE AS NOTICE of the possibility of such disciplinary action, in accordance with M.D. La. LR83 .2.8. See Matter of Thalheim , 853 F .2d 383, 386 (5th Cir. 1988) ("It is well-settled that federal district courts are bound by their own disciplinary rules when proceeding against attorneys for violation of ethical standards.").
50

An order setting a date for a hearing on this Order to Show Cause shall follow. See id. ; M.D. La. LR83 .2.8.
Baton Rouge, Louisiana , this l11'ay of December , 2013 . BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
51

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 13-00368-BAJ-SCR

RULING AND ORDER
Before the Court is Defendants' Motion to Stay Pending Appeal (Doc. 97), filed by Defendants James M. LeBlanc, Nathan Burl Cain, Angelia Norwood, a nd the Loui s iana Departme nt of Public Safety and Corrections (collectively "Defe nd ants"), seeking an order from thi s Court stayin g its Ruling a nd Order (Doc. 87), which, inter alia, granted Plaintiffs Elzie Ball, Nathaniel Code, a nd Ja mes Magee's (collectively "Plaintiffs") request for declaratory a nd injunctive relief, a nd ordered Defendants to deve lop a nd implement a pla n to red uce a nd maintain the heat index in the Louisiana State Peni tentia ry death row tiers ator below 88 degrees Fa hre nhe it. (Doc. 87, p. 100.) Specifically , Defendants r equest t he Court stay its Ruling and Order until Defendants a ppea l t h e decis ion to t h e United States Court of Ap peals for t h e Fifth Circuit , and the Fifth Circui t decides Defe nda nts' appea l. For the foll ow ing reason s, D e fendants' Motion to Stay Pending Appeal (Doc. 97) is DENIED, a nd Defend a nts are, again, ordere d to deve lop a plan to reduce and m aintain the heat index in the Loui s iana St a t e

Penitentiary death row tiers at or be low 88 degrees Fahrenheit, and s ubmit such plan
to t he Court no later than February 17, 20 14 at 5:00 p.m.
Motions to stay proceedings pending a n interlocutory appeal I under 28 U.S.C.
§ 1292(a)(1) are ma de purs uant to Federa l Rule of Civil Procedure 62(c), which
provides: "Injunction Pending an Appeal While an a ppeal is pe nding from an
interlocutory order or final judgme nt t hat gra nts, dissolves, or denies an injunction, t he
court may s us pend, modify, restore or grant a n injunctio n on te rms for bond or other
terms t hat secure t he opposing pa rty's rights. . . ." Fed. R.Civ.P. 62(c). When
determinin g whether to gr a nt a stay, courts m ust evaluate: (1) whether the app licant
has made a strong showing t hat he is like ly to s ucceed on merits; (2) whether the
a pplicant will be irreparably injured absent a stay; (3) whether issuance of a stay will
s ubsta ntially injure the other parties' in terest(s) in the proceeding; and (4) whether
granting a stay serves the public interest. Hilton u. Braunskill. 481 U.S. 770, 776
(1987); Voting for Am., Inc. u. Andrade, 488 F . Appx. 890, 893 (5th Cir. 20 12); see also
see also Nken u. Holder, 556 U.S. 418, 426 (2009). While t he Fifth Circuit has refused
to app ly these factors in a rigid, mecha nical fashion , R uiz u. Estelle, 650 F.2d 555, 565
I Generally , a district court order is final and a ppealable under 28 U.S.C. § 1291 only if it "e nds the litigation on t he me rits and leaves nothing for the court to do but execute the judgment." Eastus v. Blue Bell Creameries, L.P., 97 r .3d 100, 102 (5th Cir . 1996) (citing Catlin u. United Slates, 324 U.S. 229, 233 (1945»); see also Johnson u. Combs , 47 1 F.2d 84, 87 (5th Cir. 1972) (j ud gment or order is fi na l for purposes of appealability when it "ends the litigation on the merits and compre he nds only execution of the court's decree"); uwis v. E.I. Du Pont De Nemou rs & Co. , 183 F .2d 29, 31 (5th Cir. 1950) ("(a] fina l decision genera lly is one that ends the litigation on the merits a nd leaves nothing for the court t o do but execute t he judgment."). Here, t he Co urt has not entered a final judgment, nor did the Court's Ruling and Order put an e nd to t he action. Rathe r, the Court's Ruling and Order requires furthe r action by both parties and the Court. Thus, at this s tage of t he litigation , Defendan ts are precluded from seekin g an appeal of a fi n al judgme nt, purs uant to 28 U.S.C. § 129 1.
2

(5th Cir. 1981), such a stay is a matter of judicial discretion, not a matter of right. Nken, 556 U.S. at 433. Thus, the party who requests a stay pending appeal bears the burden of showing that the balance of the four factors weigh in favor ofa stay. U.S. v. Baylor University Medical Center, 711 F.2d 38, 39 (5th Cir.1983) (citing Ruiz, 650 F.2d at 565).
In s upport of their motion, De fendants argue that a serious legal question is prese nt here. Name ly, "whether prison conditions [in the death row tiers] pose a substantial risk of harm to a prisoner so as to violate the Eighth Amendment." (Doc. 97-1 , p. 5.) Defendants a lso "take iss ue" with the Court's requirement that Defendants develop and implement a plan to reduce and maintain the heat index in the death row tiers at or below 88 degrees Fa hrenheit, rather than a temperature.
It is beyond dispute that the Eighth Amendment's prohibition against cruel a nd unusual punis hment requires that prisoners be afforded "humane conditions of confinement." Farmer v. Brennan, 5 11 UB. 825, 832 (1994). It is a lso beyo nd dis pute that a prison official's failure to provide inmates relieffrom extreme temperatures may constitute an Eighth Amendment vio lation. Wilson v. Seiter, 501 U.S. 294, 304 (1991); Smith v. Sullivan, 553 F .2d 373, 381 (5th CiL 1977); Blackmon v. Garza, 484 F. Appx. 866, 869 (5th Cir. 20 12) (unpublished); Valigura v. Mendoza, 265 F. Appx. 232, 235 (5th Cir. 2008) (unpublished).
It is axiomatic that extre me heat coupled wit h inadequate coolin g devices prese nts a s ubstantial risk of serious harm to prisoners. Gates v. Cook, 376 F .3d 323, 332 (5th Cir. 2004). Thus , prison officials violate the Eighth Amendment when they
3

act with deliberate indiffere nce to t his substantial risk of se rious harm to prisone rs. Id. Accordingly , whe re, as he re , t he Co urt concl uded t hat: (1) Plaintiffs met their burde n of establishin g that t he conditions of confinement in t he death row tiers constit ute a substa ntial risk of se rious harm; an d (2) Defendants di sre garded the s ubstantial risk of se rious harm to Pla intiffs' health and safety there is no serious legal q ues tion .
In other words, Defendants argument amounts to little more than an attempt to contest the Co urt's requirement that Defendants develop and implement a plan to reduce and maintain the hea t index in t he dea th row t ie rs at or below 88 degrees Fa hren he it. Howe ve r, the Court's dete rmin ation that the heat index must be maintained at or below 88 degrees Fahrenheit is a factual issue, not a legal issue. Indeed, t he Court's determina tion was based on data collected by neutral third·p a rty expert a nd t he evidence prese nted at trial, most of which Defendants failed to contest. Thus, Defendants have not met their burden of establishing that a serious legal question is presented.
Assuming, arguendo, that a serious legal question exists, the Court finds t hat the other four factors do not weigh in favor of granting a stay. First, it is well established t hat "ina dequate reso urces can ne ve r be a n a dequa te justification for depriving any person of hi s constitutiona l ri ghts." Udey u. Kastner, 805 F.2d 1218, 1220 (5th Cir. 1986) (citing Smith v. S ullivan, 563 F.2d 373, 378 (1977)); see also Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972) ("Humane considerations and constitution a l require ments are not, in t hi s day, to be measured or limited by dollar
4

co nsiderations."); Gates u. Collier, 501 F .2d 1291, 1319 (1972) ("Where state ins tit u tions ha ve bee n opera ting under unconstitutiona l conditions a nd practices, the defe nse[ ] of fund s hortage [s] . . [has] bee n rejected by the fede ra l courts ."). Accordin gly, t he Court is b ard pressed to concl ude that t he a lleged cost of de veloping, a nd possibly implementing, a pla n before Defenda nts file t he ir a ppeal and before the Fifth Circuit decides Defendants' appeal, ri ses to t he level of an irreparable injury th at jus tifies a s t ay_
Second, De fend a nts a rgum ent that t he imposit ion ofa s tay will not s ub s tant ially injure Pla int iffs is unavailing, at best . Defenda nts ha ve yet to file their interlocutory appeal. Once Defenda nts file the ir appeal, it may t ake mont hs for t he Fift h Circuit to decide t he ma tter. See Nken, 556 U.S . a t 421. Given the extreme heat co ndit ion s in t he death row tiers during t he summer months, t here is a se rio us risk of future harm to Plaintiffs. This factor does not weigh in favor of gra nt ing a stay.
Third, it is beyo nd dispute t hat the Court's requireme nt tha t Defendants t a ke immediate a ction towa rd a lleviatin g the unconstitut iona l conditions of confine me nt serves t he p ublic interest in t hat it will enforce t he funda mental ri ghts enshrine d in t he Uni ted States Co nstitution . Any purported public interest in rese rving public funds un til t he Fifth Circuit decides a n appeal, that has not even bee n filed, ca nnot and does not outwe igh the public's interest in upholding the gua ra ntees of the United States Constit ution . This factor does not weigh in favor of gra ntin g a st ay .
In sum, t he Court co ncludes t hat Defenda nts have fa iled to meet their burden . De fe nda nts have failed to esta blish t ha t a serious le ga l question is prese nted.
5

Assuming, a rguendo , that a seriOUS legal question exists, the Court finds that De fe nda nts have failed to show that the ba lance of the four factors weighs in favor of a stay. See Ruiz, 650 F.2d at 565
Accordingly, IT IS ORDERED that Defendants' Motion for Expedited Consideration ofMotion to Stay PendingAppeal and Incorporated Memorandum in Support (Doc. 98) is GRANTED. IT IS FURTHER ORDERED that Defendants' Motion to Stay Pending Appeal (Doc. 97) is DENIED.
Baton Ro uge, Louisiana, this 17th day of Ja nuary , 2014 .
BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
6

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 3:13-cv-00368-BAJ-SCR

RULING AND ORDER Before the Court are two additional motions filed by Defense Counsel E. Wade Shows, Amy L. McInnis, and Jacqueline B. Wilson (collectively "Shows Attorneys"), seeking even more clarification regarding the scope of the Show Cause Hearing set for Wednesday, March 12, 2014. 1 The first is the Shows Attorneys' MOTION FOR GUIDANCE FROM THE COURT (Doc. 109), requesting "that this Court order a statu s conference to give the parties guidance on how undersigned counsel will be able to obtain discoverable evidence from Magistrate Judge Riedlinger prior to the show cause sanctions hearing," (id. at p. 3). The second IS a motion styled REQUEST FOR THE TESTIMONY OF MAGISTRATE JUDGE STEPHEN C. RIEDLINGER (Doc. 111), wherein the Shows Attorneys--evide ntly having found the answer to the question posed in their Motion for Guidance---explain the necessity of the Magistrate Judge's testimony in this matter, and request that Judge Riedlinger submit to a deposition "prior to the March 6,h [sic]," (Doc. 113 at , 8). This latest motion is accompanied by a subpoena

I Previously, the Court issued an Order detailing the scope of the Show Ca use Hearing, as well as the procedures for collecting evidence to be employed in that Hearing. (Doc. 107).

"command[ing]" Judge Riedlinger "to testify at a deposition," (Doc. 11 3·1), as well as relevant excerpts from the U.S. Courts Guide to Judiciary Policy, (Doc. 113-2).
The Shows Attorneys' request for a status conference to discuss "obtain[ing] discoverable evidence" from Judge Riedlinger will be denied. (Doc. 109 at p. 3). This is because, quite simply, any evidence the Shows Attorneys might "obtain" from Judge Riedlinger is irrelevant to whether Mr. Shows, Ms. McInnis, and Ms. Wilson conducted themselves with honesty and candor. In these filings, the Shows Attorneys acknowledge-as they must- that at the time their clients modified Angola's Death Row Tiers, they were under an Order from this Court to "ensure
t hat the ... most accurate data can be collected," (Doc. 36 at p. 2). (Doc. 11 3 at 119
(discussing the scope of the Court's July 2, 2013 Order). By adding awnings and soaker hoses to certain Tiers, the prison officials deliberately disregarded this Order, with the express intent of manipulating temperatures in the ce lls under observation . (See Doc. 88 at p. 38). Regardless of what was discussed with the Magistrate Judge at the co nfidential settlement conference, the prison officials deliberately disobeyed this Court's standing order.
Instead of addressing their clients' recalcitrant behavior ca ndidly, the Shows Attorneys attempted to lay blame at Judge Riedlinger's door, despite the fact that Judge Riedlinger lacked any authority wh atsoever to alter this Court's standing order. First, at the July 31 pretrial conference, Mr. Shows implied that Judge
2

Riedlinger approved the modifications. (Doc. 88 at p. 14). Next, Ms. Wilson took the same position in her opposition memorandum to Plaintiffs' Motion for Sanctions, stating that "Magistrate Judge Riedlinger . .. indicated that he thought any good faith solutions would be appreciated." (Doc. 66 at p. 11). Finally, Ms. McGinnis persisted in this position in open court, which ultimately prompted the Court to inquire whether it was indeed her position that Judge Riedlinger ordered modifications to the Death Row Tiers. (Doc. 88 at p. 17). Ms. McGinnis did not answer the Court's question directly. (Id.). Instead, she obfuscated, eventually stating that the modifications to the Death Row Tiers were "mentioned in advance." (Id. at p. 18).
In short, the issue in this Show Cause Hearing as it relates to Judge Riedlinger is not what the Shows Attorneys believed their clients were authorized to do following their confidential settlement discussions; rather it is why, when confronted with the fact that their clients disobeyed this Court's standing order, the Shows Attorneys repeatedly shifted blame instead of addressing the problem candidly and forthrightly, as required of lawyers granted the privilege of admission to practice in federal court. See M.D. La. LR83.2.4; La. R. Profl Conduct 3.3, 3.4, 4.1 , 8 . 3 , 8 . 4 .
In sum, because the content of the Shows Attorneys' discussions with Magistrate Judge Riedlinger is irrelevant to the disposition of this disciplinary
3

proceeding, the Shows Attorneys' Motion for Guidance (Doc. 109) will be denied. However, while noting that the Magistrate Judge's testimony is not relevant in this matter, and is, therefore, inadm issible at the Show Cause Hearing, the Court acknow ledges that the Guide to Judiciary Policy reserves the issue of whether to respond to the Shows Attorneys' request for testimony from Judge Riedlinger to the "magistrate judge himself." See U.S. Courts Guide to Judiciary Policy, Vol. 20, Ch. 8 at § 840(b)(1).
Accordingly, IT IS ORDERED that the Shows Attorneys' MOTION FOR GUIDANCE FROM THE COURT (Doc. 109) is DENIED.
Baton Rouge, Louisiana, this IS&!;ay of February, 2014.
BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
4

 
 UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA ·

ELZIE BALL, ET AL

CIVIL ACTION NO. 13-CV-368

VERSUS

JUDGE BRIAN A. JACKSON

JAMES M. LEBLANC, ET AL

MAGISTRATE JUDGE REIDLINGER

DEFENDANTS' SUBMISSION OF HEAT REMEDIATION PLAN NOW INTO COURT, through undersigned counsel, come BURL CAIN, Warden, Louisiana State Penitentiary ("LSP"); JAMES LEBLANC, Secretary of the Louisiana Department of Public Safety and Corrections; ANGELIA NORWOOD, Assistant Warden, Louisiana State Penitentiary and LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; (referred to jointly as "Defendants"), who make the following submission as Defendants' heat remediation plan ("Plan") as ordered by this Court. [Doc. 87, pages 97 and 98.] A. PROCEDURAL HISTORY On December 19, 2013, this Court ordered, among other things, that the Defendants prepare and submit a Plan, which will immediately lower and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit from April 1 through October 31, monitor, record, and report the temperature, humidity, and heat index in each of the death row tiers every two hours on a daily basis from April 1 through October 31, provide Plaintiffs, and other death row inmates who are at risk of developing heat-related illnesses, with at least one "cold" shower per day, and direct access to clean, uncontaminated ice and/or cold drinking water during their tier time and the remainder of their time in which they are confined to their cells. The last section of that portion of the Order was an omnibus provision to cover "any and all relief that is necessary to comply with the Court's order and the prevailing constitutional

1
Case 3:13-cv-00368-BAJ-SCR Document 118 02/17/14 Page 1 of 5

standards." The order dictated that the Plan shall be submitted to the Court no later than 5:00 p.m. on February 17, 2014. B. HEAT AND HUMIDITY REDUCTION AND MONITORING
Defendants have retained Mr. Frank Thompson, P.E., Thompson Luke & Associates, LLC, to promulgate a plan to maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit from April 1 through October 31, and monitor, record, and report the temperature, humidity, and heat index in each of the death row tiers every two hours on a daily basis from April 1 through October 31. Mr. Thompson's CV is attached hereto as Exhibit "A" and his heat remediation and monitoring plan, with exhibits Bl-B4, is attached hereto as Exhibit "B" in globo.
In short, Mr. Thompson's calculations show that the death row building would require approximately nine tons of air conditioning system capacity for each of the eight tiers. Mr. Thompson proposes use of a ten ton capacity system for each tier. A ninth ten ton capacity AC unit would be purchased and stored onsite should a unit fail. The AC units would utilize the existing heating, ventilation, and air conditioning ("HVAC") system in the building. As shown by Mr. Thompson's calculations, the proposed HVAC system would be capable of maintaining the heat index below 88 degrees Fahrenheit for each tier.
In addition, the temperature and humidity would be automatically monitored and recorded by a hard wired climate monitoring system for each tier. The data would be transmitted and stored as part of the LSP computer network system. The heat and humidity sensors will transmit their readings to the building's existing Johnson Control energy management system every 15 minutes. The system is capable of producing graphs showing temperature/humidity
2
Case 3:13-cv-00368-BAJ-SCR Document 118 02/17/14 Page 2 of 5

conditions over any time period. The reports can be generated on an as-requested basis, such as daily, for example. The data can be accessed and provided to any parties with an interest in same.
The HVAC temperature and humidity monitoring system does not calculate the heat index using the formula established by the National Weather Service ("NWS"). To determine the heat index used by the NWS simply requires taking the recorded temperature and humidity data and utilizing the NWS heat index calculator found on the NWS website at http://www.hpc.ncep.noaa.gov/html/heatindex.shtml. Inputting those numbers into the formula would provide the NWS heat indices at the relevant time periods. LSP can provide the heat index calculations to the Court and other interested parties. C. ONE "COLD" SHOWER PER DAY
From April 1 through October 31 the Defendants submit that each inmate will receive one "cold" shower per day. The Court did not set a benchmark for what temperature a "cold" shower should be. The water temperature is (and has been) regulated by LSP staff by way of a mixing valve. The mixing valve can adjust the water temperature at the shower head. LSP follows facility standards as established by the American Correctional Association ("ACA"). The relevant ACA standard requires that shower head water temperature range from 100 to 120 degrees Fahrenheit. See Exhibit "C," ACA Standard 4-4139, Showers, attached hereto. LSP staff would just need to know what temperature or temperature range the Court requires. D. ICE AND/OR COLD DRINKING WATER
From April 1 through October 31 the Defendants submit that each inmate will receive an ice chest which will be filled and replenished with clean ice as needed by LSP staff during their regular security rounds through each tier.
3
Case 3:13-cv-00368-BAJ-SCR Document 118 02/17/14 Page 3 of 5

WHEREFORE, defendants, BURL CAIN, Warden, Louisiana State Penitentiary; JAMES LEBLANC, Secretary of the Louisiana Department of Public Safety and Corrections; ANGELIA NORWOOD, Warden, Death Row and THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, respectfully pray that this Plan as required by this Court in its December 19, 2013 order be deemed good and sufficient.
Respectfully Submitted: s/ James L. Hilburn E. Wade Shows, La. Bar Roll No. 7637 James L. Hilburn, La. Bar Roll No. 20221 AmyL. Mcinnis, La. Bar Roll No. 29337 Jacqueline B. Wilson, La. Bar Roll No. 31055 SHOWS, CALI & WALSH, LLP 628 St. Louis Street (70802) P.O. Drawer 4425 Baton Rouge, Louisiana 70821 Telephone: (225) 346-1461 Facsimile: (225) 346-1467
ROEDEL, PARSONS, KOCH, BLACHE, BALHOFF & MCCOLLISTER Thomas E. Balhoff, Bar Roll No. 2716 Judith R. Atkinson, Bar Roll No. 17240 Carlton Jones, III, Bar Roll No. 25732 Special Assistant Attorneys General 8440 Jefferson Highway, Suite 301 Baton Rouge, Louisiana 70809 Telephone: (225) 929-7033 Facsimile: (225) 928-4925
4
Case 3:13-cv-00368-BAJ-SCR Document 118 02/17/14 Page 4 of 5

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 17, 2014 a copy of the foregoing was filed electronically with the Clerk of Court using the CMIECF system and notice will be sent to all counsel for Plaintiffs by operation of the court's electronic filing system.
Is/ James L. Hilburn JAMES L. HILBURN
5
Case 3:13-cv-00368-BAJ-SCR Document 118 02/17/14 Page 5 of 5

EXHIBIT

L___,. ,~~~/

.1''\,, ;Z~~

FRANK THOMPSON / Thompson Luke and Associates, LLC
Principal / Professional Engineer

Frank Thompson holds the Following Licenses and Certifications:

Frank Thompson is the Principal Engineer and Founder of Thompson Luke and Associates (fLA). Mr. Thompson has provided cost estimates, design services and has performed consuuction administration on many sizeable projects for commercial buildings

Education Background: Institution Louisiana State University

Degree B.S .

Year 1995

Specialization Mechanical Engineering

including general office space, hospitals, laboratories, educational
facilities, municipal buildings, commercial kitchens, churches, etc.
:rvrr. \XIhile in design, Thompson and his firm are responsible for cost
estimates, engineering, design and preparation of contract documents

Active Registration: Year .First Registered, 2000,

Discipline, PE, Mechanical Engineering,

Registration No. LA- 28854

for the mechanical, plumbing, and fire suppression systems. During

2008,

PE, Mechanical Engineering,

OK- 22899

the construction phase of the project TLA is responsible for construction observation and works with the design team to insure

2012,

PE, Mechanical Engineering,

MS- 20890

that the project is completed per construction documents. His experience with LEED certification includes the design of Beaux Box office building, Baton Rouge La., Brown Stone mixed use building, downtown Baton Rouge La. Both have been designed to meet the U.S. Green Building Council LEED Silver Standard. He is familiar with all of the current applicable codes associated with the HVAC, plumbing and fire protection systems for commercial buildings and all

Continuing Education, Seminars/Institution: Y entilation System Design and Operation for Healthcare .Facilities Airflow Measurement for Acceptable IAQ VSDs and their Effect on System Components LEED Design AD,~ Standard for Accessible Design 28 CFR part 36

continuing education classes are up to date. Frank Thompson has eighteen years of professional experience with the design of nearly

Ethics and Standards of P.rofessional Conducts

2,000 projects.

Representative Projects include:

TLA has provided Services for d1e Following Organizations: Con1mercial Properties, Baton Rouge, Louisiana Louisiana Department of Health and Hospital Louisiana Department of Environmental Quality Louisiana Department of Corrections Louisiana Department ofJustice Louisiana Department of Public Works

• Department ofJustice Building- New Building- Mechanical E ngineer Department of Health and Hospitals OPT-T- New Laboratory - lviechanical Engineer
• Department of Enviromnental Quality- New Laboratory- Mechanical Engineer • Department of Corrections - Angola Death Row Complex- Mechanical Engineer • West Baton Rouge Parish Courthouse- New HVAC System- Mechanical Engineer • DPS Trustee Compound Support Facility- New Dormitory Building- Mechanical Engineer • D epartment of Public Safety- Cafeteria Renovations- Mechanical Engineer

Louisiana Department of Public Safety Soud1ern University and A&M College, Baton Rouge, Louisiana East Baton Rouge Parish School Board State of Louisiana Facility Planning and Control Louisiana State University City of Baton Rouge -East Baton Rouge Parish

Lead Consultant to State Awarded Projects
Hurricane Katrina Damages Repairs, Temporary Dehumidification, Nine Campus Buildings, Southern University-New Orleans Campus, New Orleans, LA, State Project: 01-107-0SB-13, Part 23
Hurricane Katrina Damages Repairs, Air Handling Replacement for Cafeteria Building, Southern University-New Orleans Campus, New Orleans, LA, State Proj ect: 01-107-0SB-13. Part X2 HVAC Replacements for Allen Correctional Center, Kinder, LA, State Proj ect: 08-408-06B-Ol, Part 01

Reference:
Tony Polatta, State of Louisiana, FP&C, 225-342-0827
Earl Kern, CSRS I Garrard Program Management, 225-226-3708
Eli G. Guillory II, Soud1ern University, 225-771-4740

HV1\ C Replacements for Lurline Smith Mental Health Center, Mandeville, LA, State Project Ol-107-06B-11, Part 27 Library HVAC System Modifications, UNO, New Orleans, LA, State Project: 19-603-99B04, Part 01 A.R. Choppin Hall HVAC Repairs, Louisiana State University, Baton Rouge, LJ\, State Project: 19-60 l-07B-03, Part 0l • Hurricane Gustav Related Damages, Replacement of Stadium Lighting, Guidry Football Stadium, Nicholls State University, Thibodaux, LA, State Proj ect: G19-62l-09-0RM, Part 01 • Mechanical !l.fodifications Wetland Resource Bldg, (CCEER) LSU, Baton Rouge, Li\ , State Project: 19-60 1-93-01, Part 07

Replacement of AHU, Ag Administration Building, LSU, Baton Rouge, LA, State Project: 01-107-06B-11, Part LX Remove and Replace Mold Infested Chilled Water Pipe Insulation Basement Level, Claibome State Office Building Baton Rouge, LA, State Project: 01-107C-10-0FC, Part 01

Replacement of Fume Hoods,James W. Lee Hall, SU Baton Rouge, LA, State Project: Ol-107-06B-11, Part PY

Case 3:13-cv-00368-BAJ-SCR Document 118-1 02/17/14 Page 1 of 1

~A·~- ~/r~\~\;"~\ '

Thompson
3071 Teddy Dr. Baton

Luke
Rouge, LA

& Associates,
70809

L.L.C.

/ . \ \ Phone 225-293-9474

;, ·

~\~ Fax 225-293-4171

MECHANICAL

PROPOSED MECHANICAL SYSTEMS FOR THE BUILDING
Goal of the Addition: The existing HVAC system for the four wings will be modified to maintain indoor conditions below an 88 degree heat index in these areas. Attached are the calculations that support the sizing of the new equipment. The calculations call for 17.43 tons for each wing. This will require two 10 ton cooling system to be added to each wing. This solution will exceed the requirement of the mandated maximum heat index. The ability of monitoring and trending of the conditions in these spaces will be in place after the modifications are complete.
Existing HVAC Air Distribution System for Cellblock Wings: The wings are currently heated and ventilated only. The heating for each wing is currently accomplished by two air handling units with heat only. These systems utilize the onsite heating hot water that is delivered to each of the eight air handling units. Two air handling units are located in the mechanical room at the end of each of the four wings. Each of these air handling units supplies one half of a wing. Air is distributed to each cell and tier via security type supply air grilles that are fed by externally insulated ductwork in the ceiling space. The existing air distribution ductwork system will be utilized to provide the cooling to the wings. The general exhaust ventilation is provided by two variable speed exhaust fans located above the chase for each wing. Each cell has an exhaust grille at the rear of each cell.
HVAC Modifications to Accomplish for Cooling of the Wings: The cooling for each wing will be provided by two 10 ton constant volume packaged units with DX coils. One of these units will supply each side of the wing as it is currently divided. Two packaged air conditioning units will be installed on an elevated steel platform located outside of each of the four wing's mechanical room. The condensate from these units will be drained to new exterior wet wells at each location. The air conditioning units will be ducted and tied into each of the existing supply and return air ductwork of each heating unit. The holes in the security wall will be cut by a third party contractor. The existing heating ductwork will be utilized for the cooling system. New isolation dampers will be installed at the existing heating units and the new cooling units to switch from heating to cooling mode. The supply and return air will be fully ducted from the packaged air conditioning units to the occupied space below via low pressure ductwork with internal fiberglass insulation. The air distribution in the cells and tiers will be accomplished by the existing ductwork system that is in place. The new packaged units will be cooling only. The heating will be provided by the existing heating system. The air conditioning units will be controlled by temperature sensors located in the return air ductwork. The sensors will be set by thermostats located in the guard station. The air conditioning units will have dedicated outside air intakes that will provide the required outside air. The fresh air will be at a rate to meet all International Building Code (IBC) requirements. A filter rack with pleated filters will be inside each unit. Refer to the attached schematic sketch of the modification. The owner will purchase and store onsite a ninth spare 10 ton packaged air conditioning unit as backup if one bfthese units fails.

EXHIBIT
I

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 1 of 22

L:.:.". ;,d/{~::::~·~:7 Thompson Luke & Associates, L.L.C.

~.,~··l../i'\~.,,~''\.· 3071 Teddy Dr. Baton Rouge, LA 70809

,. .: \ \ Phone 225-293-9474

/

:~.~ Fax .225-293-4171

Building Exhaust System: The existing building exhaust system will be turned down to meet the exhaust requirements of the International Mechanical Code. The exhaust fans will no longer be necessary for comfort. The exhaust fans can serve as odor and toxin control. The existing exhaust fans are controlled by individual variable
frequency drives and can be adjusted to the new exhaust rates.

Testing and Balancing of the New System: An independent third party Test and Balance contractor will provide a report that verifies the cooling capacity and the performance of the system once all modifications are complete.

Monitoring of Space Temperature and Humidity: The monitoring of the space temperature and humidity of the cellblock area will be accomplished with three monitors in each space. The building has a Johnson Controls energy management system. This system can be expanded to add temperature and humidity sensors in the wings. Three sensors will be added to each tier. One will be installed at each end on the wall and one will be installed in the center on the ceiling. A new controller will be installed in each mechanical room. This controller will integrate the sensors into the existing energy management system. The cut sheet for the sensors and the controller are attached. These sensors will take temperature and humidity readings in the space every 15 minutes. The Johnson Control energy management system is capable of producing graphs charting the temperature/humidity conditions over any time period. The reports can be generated on an as-requested basis, such as daily, for example. The data can be accessed and provided to any parties with proper
security access.

Electrical System: The power in the existing mechanical rooms will be modified to accommodate these new units. According to the Maintenance staff on site, there is plenty of spare power to feed the new equipment. The department of Corrections will use onsite skilled labor or a third party to perform all of the electrical
work.

If you have any questions, do not hesitate to call.

Sincerely,

....-·11 - r1~·-.'.'.~·W'·/'

~J

. ~r1· ~::!:_ ...----J .,I t"

--":""'----.

J ... .

//

'-'
Frank Thompson, P.E.

Thompson Luke & Associates, LLC

February 17, 2014

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 2 of 22

Angola Death Row Tier A C HVAC Load Analysis
for
Department Of Corrections
COMMERCIAL
HVACLOADS
Prepared By: Frank Thompson, PE Thompson Luke And Associates, LLC
3071 Teddy Drive Baton Rouge, LA
EXHIBIT
I 13.1-
Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 3 of 22

vv .,,~,..;, ,.:,.,,, HVAt;, L()aC1St;aiCUl3t1Cin 1-'rogram
IBatoh,Rouqe, LA '7Q8(j~"''"''""'

t:llte ~v•u• .,, w ~ ,

..,,.,.,,,

I

Angola Death .Row PaQe 2

IGeneral Project Data Input IGenerai.Proj~ctlnformation '
Project file name:
Project title:
l Project address:
i Project city, state, ZIP: Designed by: Project date: Weather reference city: Client name: Company name: Company representative: Company address: Company city:

P:\Active Projects\14-024 STATE_Air Conditioning Angola Death How\14-024 LOA0\14-024 Tier Angola Death Row HVAC Load.CHV Angola Death Row Tier AC Louisiana State Penitentiary Angola, Louisiana
FST Sunday, February 16, 2014 BATON ROUGE, LOUISIANA, USA Department Of Corrections Thompson Luke And Associates, LLC Frank Thompson, PE 3071 Teddy Drive Baton Rouge, LA

Barometric pressure:
Altitude:
Latitude: Mean daily temperature range: Starting & ending time for HVAC load calculations: Number of unique zones in this project:

29.852 in.Hg. 64 feet 31 Degrees 20 Degrees
1am -12arn 4

IBuilding DefaultValues
Calculations performed: Lighting requirements:
, Equipment requirements:
! People sensible load multiplier:
People latent load multiplier: Zone sensible safety factor: Zone latent safety factor: Zone heating safety factor: People diversity factor: Lighting proflie number: Equipment profile number: People profile number: Building default ceiling height: Building default wall height:

Both heating and cooling loads 2.00 Watts per square foot 0.00 Watts per square foot 230 Btuh per person 190 Btuh per person
10 % 10 % 10 %
100 %
1
1 1
9.50 feet 9.50 feet

Internal Goerating Load Profiles (C~ 100}.

hr

hr

hr

hr

hr

hr

hr

hr

hr

1

:?.

3

4

5

6

7

8

9

1 2 3 4

c ,"",
'-'
c

c c c c

c c c c

c
,rv,•
" c

c c c c

c
('
c c

c c c c

c c c c

c c
("
c

5 c c ccc cccc

G c c c c c c (' c c

7 c c c c c cccc

8 9 10

'-'
c c

c c
(''

c
G
c

c c c

c c c c
c;, c

c c·~

c c c

c c
G

'·. ', :!: ' ....,...... ··<t··.·.•• "_: >;. :~·'i"~·~·~·······•JX''~'~ ·..\,,:<'·'·

hr

hr

11r

lor

hr

hr

hr

hr

hr

hr

hr

hr

hr

hr

10
c c c c c c c c c c

1'1
c c c c c c
c c
c c

12
c c c c c c c c c c

13
c c c c c
c
c
c
c c

14
c
c c c c c
c c
c c

15
c c c c c c c c c c

16
c c c c
c
c c c
c c

17
c c
c c c
c c
c
c c

18
c
c c c c
c c c c
c

19
c c c c c c c c c c

20
c c c c c c c c c c

21 22
c c c c c c c c c c ci c cl c
~I c c c

23
c c c c c c c c c c

•••••h•••r•
24
c
G
c c c c c c c c

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 4 of 22

I General Project Data Input (confd)
IBuilding.::Level Design Conditions·

Design Month
August vVinter

Outdoor

Outdoor

._ _ ___;;D:.:..:r..Ly..:::cB-=uc.:::lb'------'-'Wet Bulb

95

80

25

Indoor

Indoor

Grains

In/Outdoor

. ............B.~.I:.:...:H-=u'-'-m'------'0=. -'rc.Ly:_:B:.:u:.:l.:'b=------ . _Q!f.f.. . . . _--=C-"-o,r-'-re=-=c:.::ti-=-orcc..•

50%

80

54.61

-2

75

I M~ster'RO'ofs ·

Roof

-~"'------'-·ASH RAE

Roof

No.

Roof# U-Fac _ _ _ _ _.:_::::=-::__ _ _ _ _ _ _......::::......_ _ _ _.......... ..

1

0.100

a IMaster w lis .

Wall

ASH RAE

Wall

Dark

Susp.

. ....................C.......o.....l..o.....r........ - - - - - - - -Ceil

No

No

Wall

c

0.450

M

IMasterPa.rtitions.
Partition No.
1

Partition U-Factor
0.400

Cool T-0
18

Heat

- - - - - ' - - - - - - T-0

...................................- .........

25

___ Glass
No. ,,_......... , ...................._......,.._ 1

Summer

Winter

Glass

U-Factor U-Factor Shd.Coef. ..............................._ ..................................-.......

._ _ _ ____;_:.:...:..::_.:..c:_:_.:...:_ _

1.040

1.100

0.880

Interior
... - ..§.b.!?..?.J!J.9................._
2

Interior Shd.Coef
0.000

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 5 of 22

IAir Handler ln,out
1··Ait HanalerNumb~r 1' ln'patData
Name:
Terminal type: Method for CV Supply fan type: Calculations performed: Excess supply air: Occurrences: People profile number: Lighting profile number: Equipment profile number: Exhaust may not exceed supply air: Leaving heating coil temp (deg.F): Leaving cooling coil RH (%): Cooling coil CFM Misc. Btuh gain - supply side: Misc. Btuh gain - return side: Combined fan & motor efficiency: Static pressure across fan (in.wg.): Summer supply duct temp rise {deg.F): Summer return duct temp rise (deg.F): Winter supply duct temp drop (deg.F): Winter return duct temp drop (deg.F): Chilled water temp difference (deg.F): Hot water temp difference (deg.F): Cooling ventilation: Cooling infiltration: Heating ventilation: Heating infiltration: Pretreated outside air: Pretreated air Summer DB (deg.F): Pretreated air Summer WB (deg.F): Pretreated air Winter DB (deg.F):

AHU-1 Constant Volume Sum of Peaks Draw-thru fan Both heating and cooling loads Reheat 1 0 0
0
Yes 95.0 95 0 0 0 70 1.50 1.000 0.250 2.000 1.000 10.000 20.000 800 Direct 0 Direct 800 Direct 0 Direct none 0 0
0

Design
·M-o-nth- - ·
August
Winter

Outdoor

Outdoor

Indoor

Dry Bulb ·-·-··"-·"·-.W.:...e.:..t.::B:..u:..l.b:::..::.:.::=----- Rei.Hum

95

80

50%

2c; "

Indoor Dry Bulb
80
75

____ Grains
._.:::.D.:...i.f:.f....._

In/Outdoor Correction

54.61

-2

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 6 of 22

Wall Tot. Wall Glass Tot. Glass Totals
SE s sw w
NW Totals

Program

2.,375.0 2,375.0
380.7 380.7

•.•.·GIC1$S .·~ · . •, Area
0.0 0.0
380.7 380.7
N/A N/A

1,994.3 i ,994.3
380.7 380.7
7,443.1

0.450
N/A
1.040
N/A

897.435 897.435
395.928 395.928
1,800.177

1,187.5 0.0 0.0 0.0
1,187.5 0.0
2,375.0

380.7

1,994.3

0.450

0.000 0.000 1.040 0.000 0.000 0.000 1.040 0.000
1.040

0.450 0.450
1.040 1.040
0.242
0.000 0.000 0.880 0.000 0.000 0.000 0.880 0.000
0.880

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 7 of 22

Calculation Program

Glass Floor Slab
Skin Loads
Lighting Equipment People Partition Cool. PreL Heat. Pret. Cool. Vent. Heat. Vent. Cool. lnfil. Heat. lnfil. Draw-Thru Fan Blow-Thru Fan Reserve Cap. Reheat Cap. Supply Duct Return Duct Misc. Supply l'vlisc. Return
Building Totals

10,136 4,000 30 165 0 0 800 800 0 0 0 0 0 0 0 0 0 0

111,404
0 0 0 1,818 0 0 0 43,100 0 0 0 0 0 0 12,580 6,290 0 0
175,192

13.15 6.36
63.59
0.00 0.00 0.00 1.04 0.00 0.00 0.00 24.60 0.00 0.00 0.00 0.00 0.00 0.00 7.18 3.59 0.00 0.00
100.00

0
0 0 6,270 0 0 0 31,432 0 0 0 0 0 0 0 0 0 0 0
37,702

72,988
38,045 15,013
7,590 1,309
0 0 11,414 0 0 0 6,377 0 0 8,738 8,199 1,830 0 0
171,504

72,988
38,045 15,013 13,860
1,309 0 0
42,845 0 0 0
6,377 0 0
8,738 8,199 1,830
0 0
209,206

34.89
18.19 7.18 6.63 0.63 0.00 0.00
20.48 0.00 0.00 0.00 3.05 0.00 0.00 4.18 3.92 0.87 0.00 0.00
100.00

Ventilation Infiltration Pretreated Air Zone Loads Plenum Loads
Fan & Duct Loads
Building Totals

100.00

/Check Figures··.
Total Building Supply Air (based on a 19° TO): Total Building Vent. Air (1 0.71% of Supply):
Total Conditioned Air Space: Supply Air Per Unit Area: Area Per Cooling Capacity: Cooling Capacity Per Area: Heating Capacity Per Area:
Total Heating Required With Outside Air: Total Cooling Required With Outside Air:

6,270 0 0
37,702

11,414 0 0
143,684 0
16,406
171,504

7,471 CFM 800 CFM
5,068 Sq.ft 1.4741 CFM/Sq.ft
290.7 Sq.ft!Ton 0.0034 Tons/Sq.ft
34.57 Btuh/Sq.ft
175,192 Btuh 17.43 Tons

42,845 0 0
149,954 0
16,406
209,206

100.00

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 8 of 22

239 (Tier) 5pm August

2

West Cells

2pm August

3

East Cells

2pmAugust

4

219 (Tier)

10am August

Zone Peak Totals:
T atal Zones: 4
Unique Zones: 4

1 '184 0
11,249
1,350 15
12,825
1,350 15
12,825
1 '184 0
11,249
5,068 30
48,147

49,186 2,536 2.14
7,425 383 0.28
7,425 383 0.28
49,186 2,536 2.14
113,222 5,838 1.15

55,951 2.909 2.46
19,433 1,010 0.75
19,433 1,010 0.75
48,876 2,541 2.15
143,693 7,471 1.47

0 0 0
3,135 0 0
3,135 0 0
0 0 0
6,270 0 0

Direct 187 348
Direct 213 52
Direct 213
52
Direct 187 348
800 800

Direct 187 312
Direct 213 108
Direct 213 108
Direct 187 272
800 800

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 9 of 22

[lHr Handler #1 - AHUoo1 w Total Load Summary

Air Handler Description: Supply Air Fan: Fan Input Sensible Heat Ratio:

AHU-1 Constant Volume- Sum of Peaks

Draw-Thru with program estimated horsepower of 2.52 HP

70% motor and fan efficiency with 1.5 in. water across tlie fan

0.96

---This system occurs 1 time(s) in the building. ---

Air System Peak Time: Outdoor Conditions: Indoor Conditions:

Spm in August. Cig: 93" DB, 80" WB, 134.55 grains, Htg: 25° DB Clg: 80° DB, 50% RH, Htg: 75o DB

Summer: Ventilation controls outside air, ---··-Winter: Ventilation controls outside air.

Zone Space sensible loss: Infiltration sensible loss: Outside Air sensible loss: Supply Duct sensible loss: Return Duct sensible loss: Return Plenum sensible loss: Total System sensible loss:

113,222 Btuh 0 Btuh
43,100 Btuh 12.,580 Btuh
6,290 Btuh 0 Btuh

0 CFM 800 CFM

175,192 Btuh

Heating Supply Air: 125,802 I (.998 X 1.08 X 20) = Winter Vent Outside Air (13.7% of supply)=

5,838 CFM 800 CFM

Zone space sensible gain:

134,946 Btuh

Infiltration sensible gain:

0 Btuh

Draw-thru fan sensible gain:

6,377 Btuh

Supply duct sensible gain:

8,199 Btuh

Reheat sensible gain:

8,738 Btuh

Total sensible gqin on supply side of coil:

158,261 Btuh

Cooling Supply Air: 158,261 I (.998 X 1.1 X 19) =
= Summer Vent Outside Air (10. 7% of supply)

7,471 CFM 800 CFM

Return duct sensible gain:

1,830 Btuh

Return plenum sensible gain:

0 Btuh

Outside air sensible gain:

11,414 Btuh

Blow-thru fan sensible gain:

0 Btuh

Total sensible gain on return side of coil:

Total sensible gain on air handling system:

800 CFM

13,244 Btuh 171,504 Btuh

Zone space latent gain:

6,270 Btuh

Infiltration latent gain:

0 Btuh

Outside air latent gain:

31 ,432 Biuh

Total latent gain on air handling system:

Total system sensible and latent gain:

37,702 Btuh 209,206 Btuh

I CheckFigures '
Total Air Handler Supply Air (based on a 19° TD): Total Air Handler Vent. Air (10.71% of Supply):

7,471 CFM 800 CFM

Total Conditioned Air Space: Supply Air Per Unit Area: Area Per Cooling Capacity: Cooling Capacity Per Area: Heating Capacity Per Area:

5,068 1.4741
290.7 0.0034
34.57

SqJt CFM/Sq.ft Sq.ft!Ton Tons/Sq.ft Btuh/Sq.ft

Total Heating Required With Outside Air: Total Cooling Required With Outside Air:

175,192 Btuh 17.43 Tons

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 10 of 22

Roof-1-1-No.Cig-L Wai!-1-W-C-1\.1 Partition-2-1 Gls-W-1-90-Tran
0"/c,S-0-NS-Solar Lights-Prof=1 Equipment-Prof=1 Floor slab
Sub-total Safety factors:
Total w/ safety factors:

1,184 997
82.65 190.4 190.4 2,368 2,000
125

0.50 0.83
1.000 0.880 1.000 1.000

27.1 14.5 18/25
1 i 219

0.100 0.450 0.400 1.040 0.640

3,204 6,505
595 2,178 23,478 8,080 6,824

50,864 +10%
55,951

5.000 22.500 10.000 55.000

5,920 22,436
827 10,469

0
0 +10%
0

40.500

5,063 44,714
+10%
49,186

Z9J'1~· tTyY~s~ Cbnstructio.h

TQ<¥1e1~:·tp•eaLk!iSh._t•(·s~: n·~·i· b·J. ~}

i.r· \..,·t\\ugu.~•:-a't·.?:Prf,l•/1':/Ai>r• .l'' -··fqh·d··l·•·~··r~;~;(~~P'~~,••!1: '•;••)•~}):.'·~' ~9c~i'·;_·;.,.

.

..'

Roof-1-1-No.Cig-L Lights-Prof=1 People-Prof= 1

1,350 2,700
15.0

0.50 1.000 1.000

37.1

0.100

5,003

9,213

3,450

2,850

Sub-total Safety factors:

17,666 +10%

2,850 +10%

Total wi safety factors:

19,433

3,'135

5.000

6,750
6,750 +10% 7,425

e: Zcoonnest3r-uSdaisotnCte··lls

u p~aks
1··

(hsfen· s·i· b·l·e· )·in····A·u··gu·s·t':·

a· ·.t.

2·pr·i:l·,··•..Air·.

·H·. a·. nd·le· r

1

Roof~1-1-No.Cig-L
Lights-Prof=1 People-Prof= I

1,350 2,700
15.0

0.50 1.000 1.000

37.1

0.100

Sub-total Safety factors:

5,003 9,213 3,450
17,666 +10%

Total w/ safety factors:

19,433

2,850 2,850 +10%
3,135

5.000

6,750
6,750 +10% 7,425

'e: u .·Czoaqer4is~gt1r,u~c.-tbCInJ~Tr)p~a,k1s•(s~nshffl·:;.). l~)·..··.·l·n.·A.·q·g·u,s·. t·.•:·at·-'··•1·•·oa·m;·,·,·.·,.t· l.·i·~-.·li••~n.· c<il.er•1• ~·.{..!. :¥.t..i..4.~. ~.'}•;<?...~,9#Q•P• 1i•.~·~.:.~.~..~.;:"\~·:·~§

Roof-1-1-No.Cig-L Wali-1-E-C-M Partition-2-1 Gls-E-1-90-Tran
O%S-O-~~S-Solar
Ughts-Prof=1 Equipment-Prof=1 Fioor slab

1'184 997
82.65 190.4 190.4 2,368 2,000
125

0.50 0.83
1.000 0.880 1.000 1.000

22.1
11.2
18/25 2
219

0.100 0.450 0.400 1.040 0.570

2,612 5,015
595 396 20,910 8,080 6,824

5.000 22.500 10.000 55.000
0 40.500

Sub-total

44,433

0

5,920 22,436
827 10,469
5,063 44,714

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 11 of 22

Total w/ safety factors:

tJtfit
.,.Qdan

Elite Software Development, Inc.

·

Angola Death .RowTier AC

Pa e 10

48,876

0

49,186

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 12 of 22

Calculation Program

IAir System #1 (AHU-1) Psychrornetric Analysis

Isystem Load Analysis•
Leaving Coil Condition

····· ••···.· La:tent ·

· Graims
75.403

Draw-Thru Fan

Mise Load on Supply Side Supply Air Duct Zone Loads

6,270

1.237

Reheat

Zone Condition Return Air Duct Return Air Plenum Mise Load on Return Side Vent Air 800 CFM Blovv-Thru Fan

6,270 31,432

76.640 6.201

Entering Coil Condition

37,702

82.841

6,377 0
8,199 134,946
8,738
158,261 1,830 0 0
11,414 0
171,504

60.697 0.778 0.000 1.000
16.459 1.066
80.000 0.250 0.000 0.000 1.365 0.000
81.615

301 0
387 6,370
412 7,471
7,471

I General Psychrometric Equations. PsedJn Analysis~·· ·.

I

PR

= {Barometric pressure of site I Standard ASH RAE pressure of 29.921)

TSH = PR x 1.10 x CFM x (DB entering - DB leaving)

TLH

= PR x 0.68 x CFM x (Grains entering- Grains leaving)

GTH = PR x 4.50 x CFM x (Enthalpy entering- Enthalpy leaving)

TSH

= 0.998 X

1.10 X

TLH

= 0.998 X

0.68 X

7,47i X ( 7,471 X (

81.615 82.841

60.697 )= 171,504 Btuh

)= 75.403

37,700 Btuh

SUM =

GTH

= 0.998 X

Total System Load

4.50 X

7,471 X (

32.575 -

209,204 Btuh 26.289 )= 210,855 Btuh
= 209,206 Btuh

I ChiUed. and HofWater. Flow•Rates and Steam Requirement

Cooling GPM -

210,855 I ( 10.00 x 500 )

Heating GPM =

175,192 I ( 20.00 x · 500

Steam Req,

-

175,192 I 970

IEntering cooling Goil Conditions" ...·

Dry bulb temperature:

81.62

'Net bulb temperature:

68.35

Relative humidity:

51 .20

Enthalpy:

32.58 Btu/Ibm

Dry bulb temperature:

ILeaving .cooling Coil Conditions
Dry bulb temperature: Wet bulb temperature: Relative humidity: Enthalpy:

'
60.70 59.79 95.00 26.29 Btu/Ibm

Dry bulb temperature:

I

:::;

42.2 GPM

=

17.5 GPM

=

180.6 lb./hr

67.28

--z=]
95.00

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 13 of 22

Elite

I Air System #1 (AHU~1) Psychrometric Chart

ZC Zone Condition

OC

LC Leaving Coil Condition

EC

SO Supply Duct Temperature Rise

RD

DTF Draw Through Fan Sensible Gain

BTF

RE Reserve or Reheat Sensible Gain

PL

SM Supply Side Miscellaneous Sensible Gain

RM

PRE Pretreated Air Condition

HRV

Outdoor Condition Entering Coil Condition Return Duct Temperature Rise Blow Through Fan Sensible Gain Return Air Plenum Sensible Gain Return Side Miscellaneous Gain

;;0

Q

If<

<Q

:.{. ; (.:::..

;:::

~~~

2""::'":

i~

.L::':';:':,'l

li':\. ·:II

ft-

·::<:
'.:.

(JJ 0

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 14 of 22

/
/
/
/'
/
/

10 TON PACKAGE UNIT ON STEEL PLATFORM ~

10 TON PACKAGE UNIT ON STEEL PLATFORM
DRY WELL

,,

M1

Partial ~~ ech anic al Flo"' "o' "r' " Plan. T

STATE OF LOUISIANA
FACILITY PLANNING & CONTROL DEPARTMENT OF CORRECTIONS
LOUISIANA STATE PENITENTIARY DEATH ROW COMPLEX
FACILITY PLANNING & CONTROL SITE I.D. NO.: 2-63-003
Case 3:13-cv-00368-BAJ-SCR

THOMPSON LUKE & ASSOCIATES, L.L.C.
3071 TEDDY DRIVE
BATON ROUGE. LA 70809
PH: 225-293-9474 FX: 225-293-4171

TLA NO. 14-{)24

SKM l

EXHIBIT
I 8 z.
Document 118-2 02/17/14 Page 15 of 22

Input/Output Module (10M) Series Controllers Catalog Page
Code No. LIT-1900349 Issued November 1, 2013 Supersedes January 30, 2013

Refer to the QuickLIT website tor the most up-to-date version of this document.

The Input/Output Module (10M) Series Controllers are BACnet® Application Specific Controllers (B-ASCs) with integral RS-485 Master-Siave!Token-Passing (MS!TP) communications. IOM controllers integrate into the web-based Metasys® system.
IOMs can serve in one of two capacities, depending on where they are installed in the Metasys system . When installed on the Sensor/Actuator (SA) Bus of an Field Equipment Controller (FEC), Advanced Application Field Equipment Controller (FAC), or VMA controller, the IOMs expand the point count of these controllers. When installed on the Field Controller (FC) Bus, IOMs can be used as 1/0 point multiplexors to support monitoring and control from an Network Automation Engine (NAE) or Network Control Engine (NCE). The point multiplexor can also be useful for sharing points between other field controllers on the FC Bus using peer-to-peer connectivity.
A full range of FEC models combined with the 10M models can be applied to a wide variety of building applications ranging from simple fan coil or heat pump control to advanced central plant management.

Important:

You cannot purchase a similar third-party device and install it in a UUULC Listed smoke control system. Doing so voids the UUULC Smoke Control Listing. Third-party devices must be provided and labeled by the factory as described in the UUULC Smoke Control Listing .

Important:

Only those Johnson Controls products identified for use in smoke control applications have been tested and listed by UL for use in a Metasys System UL 864 9th Edition UUKUORD-C100-13 UUKLC Smoke Control System. Installation of a product that is not UUULC Listed and labeled for this application prevents the entire system from being UUULC Listed for smoke control.

Refer to the Metasys® System Field Equipment Controllers and Related Products Product Bulletin (L/T-12011 042) for product application details.

Auto Tuned Control Loops- Reduce commissioning time , eliminate change-of-season re-commissioning, and reduce wear and tear on mechanical devices.
Universal Inputs, Configurable Outputs, and Point Expansion Modules - Allow multiple signal options to provide input/output flexibility.
Optional Local User Interface Display -Allows convenient monitoring and adjusting capabilities at the local device.
BACnet Testing Laboratories TM(BTL) Listing - Ensures interoperability with other BTL-listed devices. BTL is a third-party agency which validates that BAS vendor products meet the BACnet industry-standard protocol.
32-bit microprocessor ensures optimum performance and meets industry specifications.
BACnet Automatic Discovery support enables easy controller integration into Metasys BAS.
Integral end-of-line (EOL) switch enables field controller as a terminating device on the communications bus.
Pluggable communications bus and supply power terminal blocks expedite installation and troubleshooting.
Wireless capabilities via a ZFR1800 Series Wireless Field Bus System enable wireless mesh connectivity between Metasys field controllers to WRZ Series Wireless Room Temperature Sensors and to supervisory controllers, facilitating easy initial location and relocation .
Ability to reside on the FC Bus or SA Bus provides application flexibility.
If the product fails to operate within its specifications, replace the product. For a replacement product, contact the nearest Johnson Controls® representative.
Figure 1: IOM4711

Features
Standard BACnet® Protocol -Provides interoperability with other Building Automation System (BAS) products that use the widely accepted BACnet standard .
Standard Hardware and Software Platform - Uses a common hardware design throughout the family line to support standardized wiring practices and installation workflows . Also uses a common software design to support use of a single tool for control applications, commissioning, and troubleshooting to minimize technical training.
ZigBeerM Wireless FC/SA Bus Interface- Provides a wireless alternative to hard-wired Metasys system counterparts, providing application flexibility and mobility with minimal disruption to building occupants .
Bluetooth® Wireless Commissioning Interface- Provides an easy-to-use connection to the configuration and commissioning tool.

EXHIBIT

1133

9'IJJJ; )1rt~ Input/Output Module (10M) Series Controllers Catalog Page
Johnson Controls
Case 3:13-cv-00368-BAJ-SCR Document 118-2

02/17/14 Page 16 of 22

Table 1: IOM Series Point Point Types

Counts Per Model Signals Accepted

Universal Input (UI)
Binary Input (BI) Analog Output (AO) Binary Output (BO)1 Universal Output (UO) Configurable Output (CO)

Analog Input, Voltage Mode, 0-10 VDC Analog Input, Current Mode, 4-20 rnA Analog Input, Resistive Mode, 0-2k ohm, RTD (1k Nl [Johnson Controls], 1k PT, A99B Sl), NTC (1 Ok Type L, 2.252k Type 2) Binary Input, Dry Contact Maintained Mode Dry Contact Maintained Mode Pulse Counter/Accumulator Mode (High Speed), 100Hz Analog Output, Voltage Mode, 0-10 VDC Analog Output, Current Mode, 4-20 rnA 24 VACTriac
Analog Output, Voltage Mode, 0-10 VDC Binary Output Mode, 24 VAC/DC FET Analog Output, Current Mode, 4-20 rnA Analog Output, Voltage Mode, 0-10 VDC Binary Output Mode, 24 VAC Triac

1 The BOson the IOM3731-0A model require an external low-voltage power source.

Table 2· 10M Series Ordering Information

Product Code Number

Description

MS-IOM1711-0

4-Point 10M with 4 Bl, FC Bus and SA Bus Support

MS-IOM2711-0

6-Point 10M with 2 Ul, 2 UO, 2 BO, FC Bus, and SA Bus Support

MS-IOM2721-0

10-Point IOM with 8 Ul, 2 AO, FC Bus, and SA Bus Support

MS-IOM3711-0

12-Point 10M with 4 Ul, 4 UO, 4 BO, FC Bus, and SA Bus Support

MS-IOM3721-0

16-Point 10M with 16 Bl, FC Bus, and SA Bus Support

MS-IOM3731-0 MS-IOM3731-0A1

16-Point 10M with 8 Bl, 8 BO, FC Bus, and SA Bus Support

16-Point 10M with 8 Bl, 8 BO, FC Bus, and SA Bus Support

Note:

Binary Outputs (BOs) on MS-IOM3731-0A controllers do not supply power for the outputs; the BOs require external low-voltage (<30 VAC) power sources.

MS-IOM4711-0

17-Point IOM with 6 Ul, 2 Bl, 3 BO, 2 AO, 4 CO, FC and SA Bus Support

1 This model is currently available only in Asia; contact your local Johnson Controls representative for more information.

Table 3: 10M Series for Smoke Control Ordering Information Product Code Number1 , 2 Description

MS-IOM1710-0U

4-Point 10M with 4 Bl; 24 VAC; FC Bus and SA Bus Support

MS-IOM1711-0U

4-Point 10M with 4 Bl; 24 VAC; FC Bus and SA Bus Support

MS-IOM2710-0U MS-IOM2711-0U

6-Point 10M with 2 Ul, 2 UO, 2 BO; 24 VAC; FC Bus and SA Bus Support 6-Point 10M with 2 Ul, 2 UO, 2 BO; 24 VAC; FC Bus and SA Bus Support

MS-IOM3710-0U

12-Point 10M with 4 Ul, 4 UO, 4 BO; 24 VAC; FC Bus and SA Bus Support

MS-IOM3711-0U MS-IOU471 0-0U

12-Point 10M with 4 Ul, 4 UO, 4 BO; 24 VAC; FC Bus and SA Bus Support 17-Point IOM with 6 Ul, 2 Bl, 3 BO, 2 AO, 4 CO; 24 VAC; FC Bus and SA Bus Support with Mounting Base

MS-IOM4711-0U

17-Point IOM with 6 Ul, 2 Bl, 3 BO, 2 AO, 4 CO; 24 VAC; FC Bus and SA Bus Support with Mounting Base

These devices are UUULc 864 Listed, File S4977, 9th Edition UUKUORD-C100-13 UUKLC Smoke Control System. 2 All field controllers in a smoke control system must be mounted in Johnson Controls custom or standard UL 864 panels or in panels that are ordered from Johnson
Controls. If these field controllers are used with panels that are not supplied by Johnson Controls, they are not compliant with the UL 864 9th Edition UUKL!ORD-C100-13 UUKLC Smoke Control System listing.

Input/Output Module (10M) Series Controllers Catalog Page

2

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 17 of 22

Accessories
Table 4· 10M Accessories Product Code Number MS-BTCVT-1 TL-BRTRP-0 MS-ZFR1811-0
MS-BTCVTCBL-700 Y64T15-0
Y65A13-0
Y65T42-0
Y65T31-0
AP-TBK4SA-O AP-TBK4FC-O AP-TBK3PW-O ZFR-USBHA-0

Description
Wireless Commissioning Converter with Bluetooth® Technology
Portable BACnet IP to MS/TP Router
Wireless Field Bus Router, 10 mW Transmission Power. Functions with Metasys BACnet FECs, VMA16s, and WRZ-Tix Series Wireless Mesh Room Temperature Sensors
Cable Replacement Setforthe MS-BTCVT-1 or the NS-ATV7003-0; Includes One 5 ft (1.5 m) Retractable Cable
Transformer, 120/208/240 VAG Primary to 24 VAG Secondary, 92 VA, Foot Mount, 30 in. Primary Leads and 30 in. Secondary Leads, Class 2
Transformer, 120 VAG Primary to 24 VAG Secondary, 40 VA, Foot Mount (Y65AS), 8 in. Primary Leads and 30 in. Secondary Leads, Class 2
Transformer, 120/208/240 VAG Primary to 24 VAG Secondary, 40 VA, Hub Mount (Y65SP+), 8 in. Primary Leads and Secondary Screw Terminals, Class 2
Transformer, 120/208/240 VAG Primary to 24 VAG Secondary, 40 VA, Foot Mount (Y65AR+), 8 in. Primary Leads and Secondary Screw Terminals, Class 2
Replacement MS/TP SA Bus Terminal, 4-Position Connector, Brown, Bulk Pack
Replacement MS/TP FC Bus Terminal, 4-Position Connector, Blue, Bulk Pack
Replacement Power Terminal, 3-Position Connector, Gray, Bulk Pack
USB Dongle with ZigBeerM Driver provides a wireless connection through CCT to allow wireless commissioning of the wirelessly enabled FEC, Advanced Application Field Equipment Controller (FAG), IOM, and VMA16 controllers. Also allows use of the ZFR Checkout Tool (ZCT) in CCT.

Note:

The ZFR-USBHA-0 replaces the lA OEM DAUBI_2400 ZigBee USB dongle. For additional information on the ZFR-USBHA-0 ZigBee dongle, refer to the ZFR1800 Series Wireless Field Bus System Technical Bulletin (L/T-12011295) or ZFR1800 Series Wireless Field Bus System Quick Reference Guide (L/T-12011630).

10M Series Technical Specifications
s· Table 10M Series

Product Code Numbers

MS-IOM1711-0: 4-Point 10M with 4 Bl, FC Bus and SA Bus Support

MS-IOM2711-0: 6-Point 10M with 2 Ul, 2 UO, 2 BO, FC Bus, and SA Bus Support

MS-IOM2721-0: 10-Point IOM with 8 Ul, 2 AO, FC Bus, and SA Bus Support

MS-IOM3711-0: 12-Point 10M with 4 Ul, 4 UO, 4 80, FC Bus, and SA Bus Support

MS-IOM3721-0: 16-Point 10M with 16 81, FC Bus, and SA Bus Support

MS-IOM3731-0: 16-Point 10M with 8 81, 8 80, FC Bus, and SA Bus Support

MS-IOM3731-0A1: 16-Point IOM with 8 81, 8 80, FC Bus, and SA Bus Support

MS-IOM4711-0: 17-Point IOM with 6 Ul, 2 81, 3 80, 2 AO, 4 CO, FC and SA Bus Support

Smoke Control Models:

MS-IOM1710-0U: 4-Point IOM with 4 Bl, FC Bus and SA Bus Support

MS-IOM1711-0U: 4-Point IOM with 4 81, FC Bus and SA Bus Support

MS-IOM2710-0U: 6-Point IOM with 2 Ul, 2 UO, 2 80, FC Bus, and SA Bus Support

MS-IOM2711-0U: 6-Point IOM with 2 Ul, 2 UO, 2 80, FC Bus, and SA Bus Support

MS-IOM3710-0U: 12-Point IOM with 4 Ul, 4 UO, 4 80, FC Bus, and SA Bus Support

MS-IOM3711-0U: 12-Point IOM with 4 Ul, 4 UO, 4 80, FC Bus, and SA Bus Support

MS-IOU4710-0U: 17-Point IOM with 6 Ul, 2 Bl, 3 BO, 2 AO, 4 CO, FC Bus and SA Bus Support with Mounting

Supply Voltage

MS-IOM4711-0U: 17-Point IOM with 6 Ul, 2 81, 3 80, 2 AO, 4 CO, FC Bus and SA Bus Support with Mounting
24 VAG (nominal, 20 VAG minimum/3D VAG maximum), 50/60Hz, Power Supply Class 2 (North America), Safety Extra-Low Voltage (SELV) Europe

Power Consumption

14 VA maximum

Note:

VA ratings do not include any power supplied to the peripheral devices connected to Binary Outputs (80s) or Configurable Outputs (COs), which can consume up to 12 VA for each 80 or CO, for a possible total consumption of an additional 84 VA (maximum), depending on the IOM model.

Ambient Conditions

Operating: 0 to 50'C (32 to 122'F); 10 to 90% RH noncondensing

Storage: -40 to 80'C (-40 to 176'F); 5 to 95% RH noncondensing

Input/Output Module (10M) Series Controllers Catalog Page

3

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 18 of 22

Table 5· 10M Series
Addressing

DIP switch set; valid field controller device addresses 4-127

(Device addresses 0-3 and 128-255 are reserved and not valid 10M addresses).

Communications Bus2

BACnet MS/TP, RS-485 3-wire FC Bus between the supervisory controller and field devices

4-wire SA Bus between field controller, network sensors, and other sensor/actuator devices. includes a lead source 15 VDC supply power (from field controller) to bus devices.

Processor

H8SX/166xR Renesas® 32-bit microcontroller

Memory

512 KB Flash Memory and 128 KB Random Access Memory (RAM)

Input and Output Capabilities IOM1711:

4- Binary Inputs: Defined as Dry Contact Maintained or Pulse Counter/ Accumulator Mode

IOM2711:

2- Universal Inputs: Defined as 0-10 VDC, 4-20 rnA, 0-<lOOk ohm, or Binary Dry Contact

2- Universal Outputs: Analog Output: Voltage Mode, 0-10 VDC; Binary Output Mode: 24 VAG/DC FET; Analog Output: Current Mode, 4-20 rnA

2- Relay Outputs: (Single-Pole, Double-Throw); UL 916: 1/4 hp 120 VAG, 1/2 hp 240 VAG; 360 VA Pilot Duty at 120/240 VAG (B300); 3 A Non-inductive 24-240 VAG; EN 60730: 6 (4) A N.O. or N.C. only

IOM2721:

8- Universal Inputs: Defined as 0-10 VDC, 4-20 rnA, 0-<lOOk ohm, or Binary Dry Contact

2 -Analog Outputs: Defined as 0-10 VDC or4-20 rnA

IOM3711

4- Universal Inputs: Defined as 0-10 VDC, 4-20 rnA, 0-<lOOk ohm, or Binary Dry Contact

4- Universal Outputs: Analog Output: Voltage Mode, 0-10 VDC; Binary Output Mode: 24 VAG/DC FET; Analog Output: Current Mode, 4-20 rnA

4- Relay Outputs: (Single-Pole, Double-Throw); UL 916:1/4 hp 120 VAG, 1/2 hp 240 VAG; 360 VA Pilot Duty at 120/240 VAG (B300); 3 A Non-inductive 24-240 VAG; EN 60730: 6 (4) A N.O. or N.C. only

IOM3721:

16- Binary Inputs: Defined as Dry Contact Maintained or Pulse Counter/Accumulator Mode

IOM3731

8- Binary Inputs: Defined as Dry Contact Maintained or Pulse Counter/Accumulator Mode

8- Binary Outputs: Defined as 24 VAG Triac (Require external low-voltage power source.)

Note:

Binary Outputs (BOs) on MS-IOM3731-0A controllers do not supply power for the outputs; the BOs require external low-voltage(< 30 VAG) power sources.

Input and Output Capabilities IOM4711:

(Cont.)

6- Universal Inputs: Defined as 0-10 VDC, 4-20 rnA, 0-<lOOk ohm, or Binary Dry Contact

2- Binary Inputs: Defined as Dry Contact Maintained or Pulse/Counter Accumulator Mode

3- Binary Outputs: Defined as 24 VAG Triac (selectable internal or external source power)

4- Configurable Outputs: Defined as 0-10 VDC or 24 VAG Triac BO

2- Analog Outputs: Defined as 0-10 VDC or 4-20 rnA

Analog Input/Analog Output Resolution and Accuracy

Analog Input: 16-bit resolution Analog Output: 16-bit resolution and ±200 mV in 0-10 VDC applications

Terminations

Input/Output: Fixed Screw Terminal Blocks

SA/FC Bus and Supply Power: 4-wire and 3-wire Pluggable Screw Terminal Blocks

Mounting Housing

SA/FC Bus Port: RJ-12 6-Pin Modular Jacks Horizontal on single 35 mm DIN rail mount (preferred), or screw mount on flat surface with three integral mounting clips on controller
Enclosure material: ABS and polycarbonate UL94 5VB; self-extinguishing, Plenum-rated protection class: IP20 (IEC529)

Input/Output Module (10M) Series Controllers Catalog Page

4

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 19 of 22

Table 5: 10M Series
Dimensions (Height x Width x Depth)

IOM171x-x and IOM271x-x Models: 150 x 120 x 53 mm (5-7/8 x 4-3/4 x 2-1/8 in.) including terminals and mounting clips

IOM2721, IOM3721, and IOM3731 Models:

150 x 164 x 53 mm (5-7/8 x 6-7/16 x 2-1/8 in.) including terminals and mounting clips

IOM371x-x and IOM471x-x Models:

150 x 190 x 53 mm (5-7/8 x 7-112 x 2-1/8 in.) including terminals and mounting clips

Note:

Mounting space for all field controllers requires an additional 50 mm (2 in.) space on top, bottom, and front face of controller for easy cover removal, ventilation, and wire terminations.

Weight Compliance
CE

0.5 kg (1.11b) maximum

United States: UL Listed, File E107041, CCN PAZX, UL 916, Energy Management Equipment; UUULc 864 Listed, File S4977, 9th Edition UUKUORD-C100-13 UUKLC Smoke Control System (models with U product code suffix only); FCC Compliant to
CFR47, Part 15, Subpart B, Class A

Canada: UL Listed, File E107041, CCN PAZX7, CAN/CSA C22.2 No. 205, Signal Equipment; Industry Canada Compliant, ICES-003

Europe: CE Mark- Johnson Controls, Inc., declares that this product is in compliance with the essential requirements and other relevant provisions of the EMC Directive 2004/108/EC.

Note:

For IOM27 and IOM37, Low Voltage Directive 2006/95/EC. For IOM47xx Models, Conducted RF Immunity within EN 61000-6-2 meets performance criteria B.

Australia and New Zealand: C-Tick Mark, Australia/NZ Emissions Compliant
BACnet International: BACnet Testing Laboratories (BTL) Protocol Revision 4 Listed BACnet Application Specific Controller (B-AS C)

This model is currently available only in Asia; contact your local Johnson Controls representative for more information. 2 For more information, refer to the MS/TP Communications Bus Technical Bulletin (L/T-12011034).
The performance specifications are nominal and conform to acceptable industry standards. For application at conditions beyond these specifications, consult the local Johnson Controls office. Johnson Controls, Inc. shall not be liable for damages resulting from misapplication or misuse of its products.

Building Efficiency 507 E. Michigan Street, Milwaukee, WI 53202

Metasys® and Johnson Controls® are registered trademarks of Johnson Controls, Inc.
All other marks herein are the marks of their respective owners. © 2013 Johnson Controls, Inc.

Published in U.S.A. Input/Output Module (10M) Series Controllers Catalog Page

www.johnsoncontrols.com
5

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 20 of 22

Johnson ~}l1
Controls
HE-6800 Series
Humidity Transmitters with Temperature Sensor

Code No. LIT-1900655 Issued April12, 2011

Description
The HE-6800 Series Humidity Transmitters with Temperature Sensor provide both humidity and temperature sensing in room wall-mount applications. The transmitter offers local warmer/cooler temperature setpoint adjustment and temporary occupancy override. The humidity sensor provides Relative Humidity (RH) accuracy of ±2% or ±3% RH and measures RH over the entire range of 0 to 100%.
A warmer/cooler dial is included on certain models for minor temperature adjustments from the setpoint. All models feature an occupancy override button that allows the user to override time-of-day scheduling when the space is occupied outside of the normal occupied hours schedule. The transmitter also includes DIP switches to enable or disable override and Light-Emitting Diode (LED) functions . In addition, all models feature a user-selectable 0 to 5 VDC or 0 to 10 VDC humidity output switch, and a power supply selection switch.
The HE-6800 Series Humidity Transmitters include screw terminal block terminations that provide flexibility for field wiring. All models include a 6-pin modular jack access port for connecting accessories to the Zone Bus. This feature allows a technician to commission or service the controller via the transmitter.
Features
controller configuration DIP switch- allows users to adjust the room comfort and choose occupancy features that match the application and transmitter power supply selection switch- enables transmitter use in high input voltage applications user-selectable humidity output- provides either a 0 to 5 VDC or 0 to 10 VDC output for compatibility with various controllers

HE-6800 Series Humidity Transmitters with Temperature Sensor
occupancy Light-Emitting Diode (LED) indicator- displays the current operating mode of the controller (VMA12 and VMA14 Series only) manual override pushbutton (PB) - overrides time-of-day scheduling when the space is occupied outside of the normal occupied hours schedule warmer/cooler setpoint dial (select models)- allows for minor temperature adjustments from the setpoint
Repair Information
If the HE-6800 Series Humidity Transmitter fails to operate within its specifications, replace the unit. For a replacement transmitter, contact the nearest Johnson Controls® representative.

Selection Charts

HE-6800 Series Humidity Transmitter with Temperature Sensor Product Code Numbers

Product Code Number

Temperature Sensing Humidity Accuracy

Warmer/Cooler Temperature

Element

(%RH)

Setpoint Adjustment Override

HE-68N2-0NOOWS

Nickel

±2%

No

HE-68N3-0NOOWS

Nickel

±3%

No

HE-68N2-1 NOOWS

Nickel

±2%

Yes

HE-68N3-1 NOOWS

Nickel

±3%

Yes

HE-68P2-0NOOWS

Platinum

±2%

No

HE-68P3-0NOOWS

Platinum

±3%

No

HE-68P2-1 NOOWS

Platinum

±2%

Yes

HE-68P3-1 NOOWS

Platinum

±3%

Yes

Enclosure Dimensions (mm) 80 X 80 80 X 80 80 X 80 80 X 80 80 X 80 80 X 80 80 X 80 80 X 80

Optional Accessories

Product Code Number

Description

ACC-INSL-0 1

Wall box Mounting Pad (1 0 per Bag)

ACC-INSL-1 1 NS-WALLPLATE-0

Surface Mounting Pad (10 per Bag)
Adapts an HE-6800 Series Humidity Transmitter (3-3/16 x 3-3/16 in. [80 x 80 mm]) to a Standard 3-3/16 x 3-3/16 in. (80 x 120 mm) Wall box

T-4000-119

Allen-Head Adjustment Tool (30 per Bag)

1. These foam pads help prevent drafts from entenng the un1t through the wall, and make ~nstallat1on eas1er when mounting on an uneven surface.

EXHIBIT
j 'SLJ

The performance specifications are nominal and conform to acceptable industry standards. For applications at conditions beyond these specifications , consu~ the local Johnson Controls office.

Johnson Contra~. Inc. shall not be liable for damages resuting from misapplication or misuse of its products. tel2012 Johnson Controls, Inc.

www.johnsoncontrols.com

1 of 2

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 21 of 22

Johnson ~}~ Controls HE-6800 Series Humidity Transmitters with Temperature Sensor (Continued)

Technical Specifications

HE~6800 Series Humidity Transmitters with Temperature Sensor

·.

·.. ····

Power Requirements

4.5 to 7.5 rnA at 14 to 30 VDC and 5K ohm Load, or 18 to 25 rnA at 20 to 30 VAC and 5K ohm Load

Terminations Wire Size

9-Position Screw Clamp Terminal Block 16 to 24 AWG (1.3 to 0.6 mm Diameter); 18 AWG (1.0 mm Diameter) Recommended

Temperature Measurement Range

32 to 131 'F (0 to 55' C)

Humidity Measurement Full Range

Range

Calibrated Range

Oto 100% RH 10to 90% RH

Temperature Sensor Nickel (HE-68Nx Models)

Sensor Type Coefficient

1,000 ohm Thin Film Nickel Approximately 3 ohm per F' (5.4 ohm perC')

Reference Resistance 1,000 ohm at 70'F (O'C)

Accuracy

±0.34F' at 70'F (±0.18C' at 21'C)

Platinum (HE-68Px Models)

Sensor Type Coefficient

1,000 ohm Thin Film Platinum Approximately 2 ohm perF' (3.9 ohm perC')

Reference Resistance 1,000 ohm at 32'F (O'C)

Accuracy

±0.35F' at 70'F (±0.19C' at 21 'C)

Humidity Sensor Type

Capacitive Polymer Sensor

Humidity Element Accuracy

HE-68x2 Models

±2% RH for 20 to 80% RH at 50 to 95'F (10 to 35'C); ±4% RH for 10 to 20% RH and 80 to 90% RH at 50 to 95'F (1 0 to 35'C)

HE-68x3 Models

±3% RH for 20 to 80% RH at 77'F (25'C); ±6% RH for 10 to 20% RH and 80 to 90% at 77'F (25'C)

Setpoint Range

Warmer/Cooler

Temperature Sensor Time Constant

10 Minutes at 10ft per Minute

Manual Override LED Ambient Operating Conditions

Integral Momentary Pushbutton (DIP Switch Selectable) Green LED Indicates Three Modes of Operation (VMA12 and VMA14 Series Controllers Only)
32 to 131'F (0 to 55'C), 10 to 95% RH Non condensing; 86'F (30'C) Maximum Dew Point

Ambient Storage Conditions

-40 to 140'F (-40 to 60'C), 5 to 95% RH Noncondensing; 86'F (30'C) Maximum Dew Point

Materials

White Thermoplastic Protection: IP30 (EN 60529)

Dimensions (HxWxD)

HE-68xx-O Models HE-68xx-1 Models

3-3/16 X 3-3/16 X 1-5/16 in. (80 X 80 X 32 mm) 3-3/16 X 3-3/16 X 1-7/16 in. (80 X 80 X 35 mm)

Shipping Weight

0.44 lb (0.20 kg)

Compliance

United States

UL Listed, File E107041, CCN PAZX, Under UL 916, Energy Management Equipment

CE

Canada Europe

UL Listed, File E107041, CCN PAZX7, Under CAN/CSA C22.2 No. 205, Signal Equipment
CE Mark- Johnson Controls, Inc., declares that this product is in compliance with the essential requirements and other relevant provisions of the EMC Directive 2004/1 08/EC.
WEEE Directive 2002/96/EC RoHS Directive 2002/95/EC

Australia and New Zealand

C-Tick Mark, Australia/NZ Emissions Compliant

The performance specifications are nominal and conform to acceptable industry standards. For applications at conditions beyond these specifications, consult the local Johnson Controls office.

Johnson Contrds, Inc. shall not be liable for damages resulting from misapplication or rrisuse of its products.© 2012 Johnson Controls, Inc.

www.johnsoncontrols.com

2 of 2

Case 3:13-cv-00368-BAJ-SCR Document 118-2 02/17/14 Page 22 of 22

JI ·. ..

EXHIBIT
I ~
Showers
4-4139 (Ref. 3-4134)

Section C. Inmate Housing

·

Qarlemasm, ednatyrPoroomvsis,ioanndmuostht ebr approved ratio is designed to their basic personal hygiene

e. mad parts assure needs.

etohffaottrihniemnmfaatacetiselihtayacv. ceeTashdseeiqnrueacqteuelilarsecmcOele'snsstlteooempfienaegnt

_,

.lhedtFneioiamfgmt:hlh"aaprtetneerieenndrsnmahtctehauoiartlrteavdeJtetsiiro,ouau.:ncrenancnWlneiesnsgsuassigrtneentwgoratathfftoireoeopolnr;emsara.aslatfhbo1eaoltr0ewy0msetsoiarhndsftoeiemwiginbsreumeurmeistalshdtrweeiaFrnsitmgtaihaohoonrstoredtefanh.tohtmeioncpeaeeailttprlshlarhyttocqoumorwcdeoo1ee~:nt2rscet0ofrsnoohptdrlyerlecgeeogivdilfreleyeneretiydoasc
pCpwsFgoruhoaaaofnomhtcowwiertmdsreiaehchneitrmseneyhssrtgede:.tiinraoteattOnwafhsiofrcncifergea,pinlhnuroddeantioecrhnc.ttregothisercmemetirecnsfpamao.mrenrTeprataahaetuesbtersu,salete.rtteehuAmsreas,lecrnpsseaiode.bfl,rdyaWmnaitenlcuaUaegcrytdieledeesrdcxedhoepnt,oentetweiamtcnrrlteopeiroalndessntlrjhyuasaetirhesunyrolrdeauceaivrlosvedaiuwatdbnilsenudeoagalotooplpftcwohrfctneerhuoce1hrmal0ouwgi0ndtahpsweidteunitaenrsthustgteec,utrioreuioonleisnndrsge,
such as kitchens.

Special Management Housing

4-4140 (Ref. 3-4135)

Stdthheooeg~smrueemgetooautfticoeotdnnh.veheoSrgsueeesgnirwneegrgitaahlutinaoininnt.dsmcbapeet.l-eloosvb/prisodoeoeprmvulelisavdtipinboegyn.-;scmtoaiantfldfltimhteieeoxmncisenbpmetthriaosat.netssapaasprseriogxcnilemedaarttlyeo

(;owmwt: None.

4-4141 (Ref. 3-4136)

4-4141 Interpretation

August

2004

AwpCeolhlrmiiccomhedels13ls]d5J/.ru:sorSqioneumggasrtreheigenfaedtseeaedytg.iirsnTenuhgienaaretteeinofsocnarurepmetrhbcoeoevnricdefeidelnl/esardpomaoincmienc.meimlluSsu/tmrpooroomvfsi8df0eorasdmqduoiatrireoenexfaelteesntp,daoecdef for in-cell activity.

Housing for the Disabled

4-4142 (Ref. 3-4137)

Isfanoanmfrdetathysteeearsivnrwiduciesstesehcaaduruiresditaaypbc.riclBoeivtosiiseudissbeilasuerfgetoourhsioinenudmtseeb;g1dy.t-eiiasnnt.imwoaniamttbweasdintiwlhs).aieotbrhtihltdihetiiarseatisnbpwmiJl:oihat"oiVteeis.rsde.eisssPidfdroeoersgiintrghantemebidres

- ffClaoiocrmimiltithmt~yeed.inrtto:h,oIrufostohimnegsf,aascnlidelietupysineacgocaefrp.featascsii,lnifdtuyirvnrieidssuhoaiunlrsgcswe,sid.thaHydoriousoasimbnisgli,tiitneosci,lleuittdsme, swu, asbtsuhptb1i·aossvinindoset,

;'l.·
•
..
.,
..
.....
.::
/;::
[::'l '
rt:::.
f~~- i:''>:l:"
~:; · ~
~f~1l'~!!ll,:':}'~.:~·
t~i\:li1.,
rl[~:: ;,/j.'rli),.'·!1r·r;;;·!.:..~
h/;f;:[
:;:~:;;;
f·~.la:i~/.1j',;l;·!~:,j:~:,j
~:if~:.·Jl~rl!:~;,·~ri
~~Y;·~·L~)l~!;!i::;:'\•
A·':!,
fl,1~:!!!'iij!;'.
Ht:!.
1:::::.
'(!'~ :;:
t:.•
:!·;
~~..r·:}·.1· ;i·
t·!'
:·:i: :
,' .: •
•.
) ;.. . r:···
; I

Adult Correctional Institutions, Fourth Edition 39

....'l o :

Case 3:13-cv-00368- -BAJ-SC- R Docum~ ent 118-3- 02/17/1- 4 Page 1~ of 1 ··-- ···-·····"'·"·--.,...,.~~···,:······~···:·:

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 13-00368-BAJ-SCR

RULING AND ORDER
I. INTRODUCTION On August 5, 2013, this matter came before the Court for a non-jury trial on the
merits and a hearing on Plaintiffs’ Motion for a Preliminary Injunction (Doc. 12).1 Having considered the parties pretrial and post-trial submissions, the evidence introduced at the trial, and the arguments presented by counsel, the Court finds that Plaintiffs have satisfied their burden of proving that Defendants have subjected them to cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution. The Court finds, however, that Plaintiffs did not introduce sufficient evidence to establish that Defendants have violated the Americans with Disabilities Act, as modified by the Americans with Disabilities Act Amendment Act, and Section 504 of the Rehabilitation Act of 1973. Accordingly, Plaintiffs’ request for declaratory and injunctive relief is GRANTED IN PART and DENIED IN PART, as
1 The Court initially heard Plaintiffs’ Motion for a Preliminary Injunction with oral argument on July 2, 2013. (Doc. 24.) At the conclusion of the hearing, the Court deferred its ruling on the motion, pending the collection of essential data by a neutral third-party expert, re-set the motion hearing to August 5, 2013, and set the trial on the merits to August 5, 2013.

Case 3:13-cv-00368-BAJ-SCR Document 87 12/19/13 Page 1 of 102

outlined below. Further, Plaintiffs’ Motion for a Preliminary Injunction (Doc. 12) is
DENIED AS MOOT.2 The Court’s credibility findings, findings of fact and conclusions
of law are set forth below, as required by Federal Rule of Civil Procedure (“Rule”) 52(a).
II. JURISDICTION
It is uncontested that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331,
1343, and 2201.
III. BACKGROUND
A. Plaintiffs’ Claims
Plaintiffs Elzie Ball (“Ball”), Nathaniel Code (“Code”), and James Magee
(“Magee”) (collectively “Plaintiffs”) are death row inmates, who are currently
incarcerated at the Louisiana State Penitentiary in Angola, Louisiana (“Angola”).
Plaintiffs filed this lawsuit against Defendants James M. LeBlanc3 (“LeBlanc”), Nathan
Burl Cain4 (“Cain”), Angelia5 Norwood6 (“Norwood”), and the Louisiana Department of
2 Whether to grant or deny a request for a preliminary injunction is within the sound discretion of the district court. See Allied Marketing Group, Inc. v. CDL Marketing, Inc., 878 F.2d 806, 809 (5th Cir. 1989). However, the purpose of a preliminary injunction is to prevent irreparable injury so as to preserve the Court’s ability to render a meaningful decision on the merits. Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 627 (5th Cir. 1985) (citing Canal Authority of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)). Because the Court now issues its ruling and order on the merits, a preliminary injunction is no longer necessary. Therefore, Plaintiffs’ request is denied as moot. 3 Defendant LeBlanc is the Secretary of the Louisiana Department of Public Safety and Corrections. (Doc. 1, ¶ 10.) LeBlanc is sued in his official capacity for declaratory and injunctive relief. 4 Defendant Cain is the Warden of the Louisiana State Penitentiary in Angola, Louisiana. (Doc. 1, ¶ 8.) Cain is sued in his official capacity for declaratory and injunctive relief. 5 Plaintiffs identified Defendant Norwood at “Angela” in their complaint. However, Defendant Norwood’s testimony at trial was that her first name is spelled as above. 6 Defendant Norwood is the Assistant Warden in charge of death row at the Louisiana State Penitentiary in Angola, Louisiana. (Doc. 1, ¶ 9.) Norwood is sued in her official capacity for declaratory and injunctive relief.
2
Case 3:13-cv-00368-BAJ-SCR Document 87 12/19/13 Page 2 of 102

Public Safety and Corrections (collectively “Defendants”) pursuant to 42 U.S.C. § 19837 (“Section 1983”); the Eighth Amendment to the United States Constitution, U.S. Const. amend. VIII; Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV, § 1; Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq., as modified by the Americans with Disabilities Act Amendment Act (the “ADAAA”), 42 U.S.C. § 12131, et seq.; and Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 794. (Doc. 1.) Plaintiffs allege that Defendants have violated, and continue to violate, their rights under the Eighth Amendment, ADA, ADAAA, and Rehabilitation Act by subjecting them to excessive heat, acting with deliberate indifference to their health and safety, and discriminating against them on the basis of their disabilities.
Plaintiffs seek a ruling and order from this Court granting their Motion for a Preliminary Injunction (Doc. 12), and requiring Defendants to take action to decrease and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit.8 Plaintiffs further seek a ruling and order: (1) declaring that Defendants

7 As discussed below, the gravamen of Plaintiffs’ Section 1983 claim is that Defendants have subjected them to cruel and unusual punishment, in violation of the Eighth Amendment, made applicable to the States by the Fourteenth Amendment.
8 Plaintiffs request that Defendants be required to decrease and maintain the heat index at or below 88 degrees Fahrenheit based on the recommendations of their expert, Dr. Susan Vassallo, M.D.:

BY MR. KAMIN:

And do you have an opinion, Dr. Vassallo, on the heat index thresholds that you would recommend for creating a safer environment for the Plaintiffs on death row?

BY DR. VASSALLO:

Well, in my report, I have put that temperature at 88 degrees. That is probably towards the warmer side . . . none of us would tolerate being in a setting at 88 degrees heat index . . . we would get out of that and we

3

Case 3:13-cv-00368-BAJ-SCR Document 87 12/19/13 Page 3 of 102

have violated Plaintiffs’ rights; (2) requiring Defendants to develop and implement a
long-term plan to maintain the heat index in the Angola death row tiers at or below 88
degrees Fahrenheit; (3) appointing a monitor to oversee Defendants’ implementation
of such plan; (4) requiring Defendants to provide Plaintiffs clean, uncontaminated ice
and drinking water at regular intervals during the summer months; (5) requiring
Defendants to lower the shower temperature during the summer months; and (6)
enjoining Defendants from retaliating against Plaintiffs.9 Plaintiffs also seek
attorneys’ fees, pursuant to 42 U.S.C. §§ 1988 and 12205.
Defendants oppose Plaintiffs’ Motion for a Preliminary Injunction and deny all
liability. (Docs. 15, 38.) Defendants contend that Plaintiffs have not suffered, nor are
they likely to suffer, adverse health effects due to the conditions of confinement at
Angola’s death row facility. Defendants further contend that they have not violated
Plaintiffs’ rights under the ADA, ADAAA, or Rehabilitation Act. Thus, Defendants
request that the Court deny Plaintiffs’ motion, rule in Defendants’ favor, and deny
Plaintiffs all requested relief.
would go into some cooler setting. . . . I derive[d] that based on the [National Oceanic and Atmospheric Administration] charts, as well as the literature, which I have at least five or six articles behind that statement, that show this sort of a U-shape that when it’s 88, 90 degrees, the morbidity and mortality from heat rises exponentially. And those are all [in] peer review scientific articles. Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013. 9 At the conclusion of the trial on the merits, the Court denied Plaintiffs’ request that the Court enjoin Defendants from retaliating against Plaintiffs. Trial Transcript, Aug. 7, 2013. Accordingly, this request for injunctive relief was denied, as Plaintiffs failed to present evidence that Defendants were likely to retaliate against them.
4
Case 3:13-cv-00368-BAJ-SCR Document 87 12/19/13 Page 4 of 102

B. Procedural History The instant litigation was filed on June 10, 2013. (Doc. 1.) Eight days later, Plaintiffs filed a Motion for a Preliminary Injunction. (Doc. 12.) On July 2, 2013, Plaintiffs’ Motion for a Preliminary Injunction was heard with oral argument. (Doc. 24.) After considering the parties’ arguments, the Court determined that it was necessary to obtain current, accurate temperature, humidity, and heat index data from Angola’s death row facility before ruling on Plaintiffs’ motion. Accordingly, the Court deferred its ruling, pending the collection of such data by a neutral third-party expert. (Doc. 24.) The Court also issued a scheduling order, and set the trial on the merits to begin on August 5, 2013. (Docs. 24, 28.) Subsequently, the Court ordered the parties to retain a neutral third-party expert to install the necessary equipment, and record, collect, and disseminate the required data, beginning on July 15 and ending on August 5, 2013. (Doc. 36.) From August 5 through August 7, 2013, the Court conducted a hearing on Plaintiffs’ Motion for a Preliminary Injunction and the trial on the merits. Fed.R.Civ.P. 65(a)(2). During the trial, the parties jointly submitted the temperature, heat index, and humidity data collected and analyzed by the neutral third-party expert, United States Risk Management, L.L.C. (“USRM”), to the Court. During the trial, the parties also presented testimonial evidence regarding the conditions at Angola’s death row facility, and Plaintiffs’ underlying medical conditions and medications. Following the trial, the undersigned toured the death row facility and observed the conditions first-hand. As a result, the Court makes the following
5
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credibility findings, findings of fact, and conclusions of law. IV. CREDIBILITY FINDINGS 1. “In a non-jury trial, credibility choices and the resolution of conflicting testimony are the province of the judge, subject only to Rule 52(a)’s clearly erroneous standard.” Justiss Oil, Co., Inc. v. Kerr-McGee Refining Corp., 75 F.3d 1057, 1067 (5th Cir. 1996) (citation omitted); Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir. 1995) (“The trial judge’s ‘unique perspective to evaluate the witnesses and to consider the entire context of the evidence must be respected.’”) (citation omitted). 2. In making its findings of fact, the undersigned relied on the parties’ written submissions, the oral testimony presented at trial, and the evidence introduced at trial. Due to the number of disputed facts, it was necessary to consider the demeanor of each witness, his or her interests in the case, and the internal consistency of his or her testimony. See Justiss Oil, 75 F.3d at 1067. 3. The following are the Court’s credibility findings as to Defendant Norwood. 4. On July 15, 2013 at 4:45 p.m., Defendant Norwood issued an email to all of the death row supervisors regarding the monitors that were installed in the death row tiers by USRM. Norwood’s email ordered the following:
In order to ensure accurate and consistent temperature recording, all fans and windows are not to be adjusted in any manner. In addition, no offender and/or employee is to tamper with the recording devices placed on each tier. Only authorized persons will be allowed inside the cells with the recording devices. 5. Despite Norwood’s issuance of the hold order, Defendants installed awnings over the windows in tiers C and G on or about July 26, 2013. Such awnings remained on
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the windows from that date until the end of the data collection period. Defendants also

attempted to wet and/or mist the ceiling and/or outside walls of certain housing tiers

using water hoses. Defendants took such actions without seeking the permission of the

Court.

6. When asked by counsel for Plaintiffs about her understanding as to the purpose

of the data collection, Norwood testified as follows:

BY MR. VORA:

Ms. Norwood, what was your understanding as to why USRM was installing those monitors?

BY MS. NORWOOD:

Because the Judge wants a fair and impartial, objective reading of the temperatures.

BY MR. VORA:

And you understood that it was important for you to make sure that he did get fair and impartial readings of the temperatures inside of the death row tiers, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

In fact, you understood it and you even advised the other death row supervisors to ensure that the correctional officers also understood that they were to ensure that the Judge received fair and impartial numbers for the USRM monitors, correct?

BY MS. NORWOOD: Yes.

. . .

BY MR. VORA:

The reason that you asked for all the fans and windows not to be adjusted in any manner was to ensure, in your words, accurate and consistent temperature recordings, correct?

BY MS. NORWOOD: Yes.

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Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

7. Later, Norwood testified that she understood that: (1) the data was being

collected pursuant to a court order; (2) she had an obligation to obey the Court’s order;

and (3) she had an obligation not to engage in any actions that could possibly interfere

with the collection of such data.

BY MR. VORA:

And you understand that the USRM data was also being collected pursuant to the Court’s order, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And you understood that you had a duty to obey the Court’s order and to not engage in any action that might interfere with the Court’s collection of that data, correct?

BY MS. NORWOOD: Yes.

. . .

BY MR. VORA:

You understood that the Court wanted accurate and consistent temperature recordings, correct?

BY MS. NORWOOD: Yes.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

8. Despite this testimony, Norwood proceeded to testify that it “didn’t occur” to her

that Defendants’ installation of window awnings and use of “soaker” hoses might

interfere with the data collection. Trial Transcript, Testimony of Angelia Norwood,

Aug. 5, 2013.

BY MR. VORA:

. . . [D]id it ever cross your mind that the awnings might interfere with this Court’s order that the

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temperature be accurately consistently recorded and collected?

BY MS. NORWOOD: No, it did not.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

9. Norwood further added that she did not see a problem with Defendants’

installation of the awnings or use of the “soaker” hoses. Thus, she did not question her

superiors, nor did she attempt to prevent the installation or use of such devices, after

Defendant Cain ordered the installation and use of such.

10. Norwood’s credibility was further undermined by her testimony that it “didn’t

occur” to her that Defendants’ installation and use of such devices was inconsistent

with her July 15, 2013 email. Trial Transcript, Testimony of Angelia Norwood, Aug.

5, 2013.

11. When questioned by the Court, Norwood testified as follows:

BY THE COURT:

. . . it didn’t dawn on you that [Defendants’] activity was completely inconsistent with your email, the message in your email? . . . and now you are testifying - you’re telling the Court that somehow you didn’t think there was any problem with the installation, even after you issued this email message to all [of] the supervisors on death row? You saw nothing wrong, no problem with the installation of the awnings? You saw no problem with the use of the misters or soaker hoses or anything else? Is that what you are telling me?

BY MS. NORWOOD: Yes, sir. It is.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

12. When further questioned by the Court, Norwood testified that she did not

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believe that the awnings or “soaker” hoses would affect the temperature readings.

13. That testimony, however, was wholly inconsistent with Norwood’s later

testimony, in which she admitted that the purpose of the awnings and “soaker” hoses

was to attempt to lower the temperatures inside the death row housing tiers:

BY MR. VORA:

Why were the awnings installed on the death row tiers?

BY MS. NORWOOD:

To see if it would make a difference as far as providing shade over the windows, to see if it would cool - to see if it would make a difference, as far as the temperature, to bring it down.

. . .

BY MR. VORA:

Are you ever in a position to ask Warden Venoit questions?

BY MS. NORWOOD: Yes.

BY MR. VORA:

Did you ask him whether installing soaker hoses would affect the gathering of the data consistently and accurately pursuant to this Court’s order?

BY MS. NORWOOD: Not in so many words.

BY MR. VORA:

Did you ask him in any words?

BY MS. NORWOOD: Yes.

BY MR. VORA:

What did you ask him?

BY MS. NORWOOD:

I asked him if he seriously thought that wetting the outside of that building would impact the interior temperature.

BY MR. VORA:

Why did you ask him about impacting the interior temperature, but you didn’t ask him

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about whether or not that would be consistent with this Court’s order that accurate and consistent data be recorded?

BY MS. NORWOOD: It didn’t occur to me.

. . .

BY MR. VORA:

But your understanding as to why any of these actions with respect to soaker hoses or awnings, your understanding was that it was in order to further the settlement, correct?

BY MS. NORWOOD: No.

BY MR. VORA:

What was your understanding as to why that was happening?

BY MS. NORWOOD:

My understanding was to - to see if there was anything that would work to reduce the temperature.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

14. As highlighted above, Norwood’s testimony was illogical and riddled with

contradictions and inconsistencies. For example, despite instructing her subordinates

to not tamper with the tier windows “to ensure accurate and consistent temperature

recording[s],” Norwood attempted to convince the Court that it “didn’t occur” to her

that Defendants’ installation of the window awnings and use of “soaker” hoses may

interfere with the data collection.

15. In another example, Norwood testified that she understood that the purpose of

the twenty-one day data collection period was to collect accurate and consistent data.

Yet, she testified that she never questioned Defendants’ attempts to alter the

temperature, and thus, the data.

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16. In another example, despite testifying that it “didn’t occur” to her that Defendants’ actions may alter the temperature, and thus, the data, Norwood subsequently testified that the purpose of the window awnings and “soaker” hoses was to alter the temperature inside the death row tiers. 17. In sum, the Court finds that Norwood’s testimony on this issue lacked the ring of truth. Accordingly, this Court does not consider Norwood to be a credible witness, particularly as it relates to Defendants’ actions during the data collection period. Accordingly, Norwood’s testimony regarding Defendants’ actions during the data collection period were not relied on by the undersigned. V. FINDINGS OF FACT
The following findings of fact are uncontroverted or supported by the evidence in the record. Where a particular fact was controverted, the Court weighed the evidence and determined that the evidence presented by the party supporting that fact was more persuasive.
A. Angola’s Death Row 1. In 2006, the Louisiana Department of Public Safety and Corrections constructed a new facility at Angola to house inmates who have been sentenced to death (“death row” or “death row facility”). The 25,000 square foot death row facility features four housing wings, each of which contains two housing tiers; (2) administrative offices; (3) visitation rooms; (4) a medical clinic; (5) a dental clinic; (6) a control center where the correctional officers are stationed; and (7) an execution chamber. Air conditioning is provided in the administrative offices, visitation rooms, medical clinic, dental clinic,
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control center, and execution chamber. Air conditioning is not provided in the tiers where the inmates are housed. 2. Each of the four housing wings extend from the control center like spokes on a wheel. Each wing contains two housing tiers, for a total of eight tiers. Each tier is assigned a letter name: A, B, C, D, E, F, G, and H. Currently, only tiers A, B, C, F, G, and H house death row inmates. 3. Between the housing tiers, which sit back-to-back, are a series of pipes, in which are encased the plumbing, electrical wires, and duct work for the entire wing. 4. Each tier contains between twelve and sixteen cells, which house one inmate each, and a tier walkway. Tiers A, B, G, and H contain sixteen cells. Tier C contains twelve cells. Tier F contains fourteen cells. 5. The ceiling, floor, and walls of each housing tier are made of concrete. Similarly, the ceiling, floor, and walls of each inmate cell are made of concrete. 6. Each inmate cell is separated from the tier walkway by metal security bars. 7. Approximately nine feet across from the security bars are louver windows. The record is unclear as to how many windows are in each housing tier. However, the record indicates that each window measures approximately two feet wide by four feet tall. 8. Each louver window is comprised of a screen and a series of translucent, sloping, overlapping blades or slats that may be adjusted to admit varying degrees of air or
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light.10 Like most louver windows, the windows do not open in the traditional method. Rather, to open the window, one must tilt or adjust the horizontal louvers by using a handle. The maximum degree to which the louvers may be tilted is approximately forty-five degrees. 9. Above the windows are non-oscillating mounted fans that measure thirty inches in width.11 Each fan is shared by two inmates (i.e., the fan services two cells).12 The uncontroverted testimony at trial was that the mounted fans were not a part of the original construction. Rather, they were added to the death row tiers at a later date. 10. Death row inmates are required to remain in their cells twenty-three hours a day. 11. Each cell includes a sink, mirror, toilet, bed, desk, and chair. There are no windows or fans inside the cells. Rather, each cell contains a vent, measuring approximately six inches by eight inches, through which air from the window on the other side of the tier is drawn into the cell, and then into the vent, and then into the housing wing’s exhaust system, and then to the outside. 12. During the one hour period in which inmates are permitted to leave their cells, inmates may engage in outdoor recreation in the recreation cage13, or spend time in the tier walkway (“tier time”), and/or take a shower.
10 It is not clear from the record whether the louvers are made of plastic, glass, or another material. 11 The parties stipulated to the width of the death row fans. (Doc. 70.) 12 Mounted above the windows are televisions, which are also shared by two inmates (i.e., the television services two cells). 13 Inmates are permitted to engage in outdoor recreation only four times per week.
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13. Each tier has two shower stalls, one standard shower and one handicap accessible shower. Inmates are permitted one shower per day. The shower water temperature is maintained between 100 and 120 degrees.14 14. Each housing tier also has a portable, forty-eight ounce or sixty-eight ounce chest cooler (“ice chest”) where Angola staff place ice from the death row facility’s only ice machine. The ice chest is located in the tier walkway, at the entrance of the tier. Inmates are permitted access to the ice chest during their tier time only. Thus, during the twenty-three hours in which the inmates are confined to their cells, they do not have direct access to the ice chest. 15. Ice is not usually distributed to the inmates by the correctional officers. Indeed, the correctional officers are not required, and sometimes decline requests from the inmates, to distribute ice to the inmates.15 Rather, although they are not required to do so, the inmates who are on tier time usually distribute ice to the inmates who are confined to their cells. As a result, the inmates who are confined to their cells must rely on other inmates to distribute ice to them during each respective inmate’s tier time. 16. If an inmate chooses to engage in outdoor recreation rather than tier time, or refuses to distribute ice to inmates who are confined to their cell, then the confined inmates do not receive ice during that hour. Further, if an inmate exhibits habits that
14 The uncontroverted testimony at trial is that the shower water temperature is required to range between 100 and 120 degrees to promote hygienic practices. 15 During the trial, Defendant Norwood testified that “offender orderlies who are assigned to work death row” “are allowed” to distribute ice to the death row inmates, but only “if it is asked of them” by a correctional officer. Trial Transcript, Testimony of Angelia Norwood, Aug. 7, 2013.
15
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the other inmates consider to be unsanitary, the other inmates will not ask such inmate to distribute ice during his tier time. As a result, inmates who are confined to their cells do not receive ice during that hour, unless the correctional officers agree to provide it. 17. Inmates also do not have access to the ice chest during the overnight hours, during which the death row tiers are locked down.16 Further, it is uncontroverted that, over the course of a day, the ice in the ice chests, as well as the ice in the facilities’ only ice machine, frequently runs out.17 18. While Angola’s death row has a facility-wide heating system, none of the housing wings include a mechanical cooling system by which the dry bulb18 (i.e. ambient temperature) (“temperature”), humidity level19, or heat index20 can be lowered.
16 The uncontroverted testimony at trial was that the housing tiers are placed on lock down beginning at 10:30 or 11:00 p.m. It is not clear from the record what time the housing tiers are re-opened each morning. 17 During the Court’s site visit, Defendants contended that when the ice in the death row facility’s only ice machine runs out, the correctional officers retrieve ice from the ice machines in a nearby housing unit. 18 The dry bulb temperature is the temperature indicated by a dry-bulb thermometer that is the actual temperature of the air. Merriam-Webster Dictionary (11th ed. 2009). 19 Relative humidity is a dimensionless ratio, expressed in percent, of the amount of atmospheric moisture present relative to the amount that would be present if the air were saturated. National Weather Service Glossary, http://forecast.weather.gov/glossary.php (last visited Dec. 17, 2013) [hereinafter “NWS Glossary”]. 20 The heat index, or the “apparent temperature,” is an accurate measure of how hot it really feels when relative humidity is factored with the actual air temperature. NWS Glossary, supra note 19.
16
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19. It is uncontroverted that the housing wings were designed without a mechanical

cooling system. Instead, each wing features a ventilation system that consists of the

above-mentioned windows and cell vents, as testified to by witness Frank Thompson.21

BY MS. COMPA:

Is there any mechanism on the death row tiers to lower the temperature or humidity?

BY MR. THOMPSON: No. Just ventilation.

BY MS. COMPA:

What is the relationship between the temperature and the humidity outside and the temperature and humidity inside the death row tiers?

BY MR. THOMPSON:

The ventilation brings the air in from the back of the cells through the windows, across the across the way - from the windows into the exhaust grill that’s in the back of the cell. So, it just brings it in from the outside. So basically, you’re using the outside air to cool or ventilate the space.

Trial Transcript, Testimony of Frank Thompson, Aug. 5, 2013.

20. It is also uncontroverted that the ventilation system does not reduce the

temperature, humidity level, or heat index in the housing tiers. Thus, there is no

system that will lower or limit the temperature, humidity level, or heat index in the

tiers.

BY MS. COMPA:

And would it be any cooler inside than it is outside?

BY MR. THOMPSON:

No. You would reach about the temperature in the shade would be your goal.

21 During the trial, Thompson testified that his firm, Thompson, Luke & Associates, oversaw the construction of the death row facility.
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BY MS. COMPA:

And humidity wise, is that also true?

BY MR. THOMPSON: Humidity is similar.

BY MS. COMPA:

And, to your knowledge, is there an upper limit to how hot it can become on the death row tiers temperature wise?

BY MR. THOMPSON: It’s subject to what’s outside, the outside temperature.

Trial Transcript, Testimony of Frank Thompson, Aug. 5, 2013.

B. Plaintiff Elzie Ball

21. Plaintiff Ball is sixty years old. He has been on death row for sixteen years.

Currently, Ball lives in tier H, cell 5.22

22. It is uncontroverted that Ball suffers from hypertension, diabetes, and obesity.

To treat his hypertension and diabetes, Ball takes a variety of medications that make

him more susceptible to heat-related illness.23

23. It is also uncontroverted that Ball’s blood pressure is uncontrolled, and that it

spikes during the summer months. It is further uncontroverted that Defendants’ staff

physician, Dr. Hal David Macmurdo, M.D. (“Macmurdo”) is of the opinion that“[s]ooner

or later” Ball is “going to stroke out.” Trial Transcript, Testimony of Elzie Ball, Aug.

5, 2013.

22 Ball testified that he has also lived in tiers C, F, and G.
23 Specifically, Ball takes the following medications on a daily basis: Insulin, Glyburide (brand name: Micronase®), Meteformin Hydrochloride, Simvastatin (brand name: Zocor®), Amlodipine (brand name: Norvasc®), Clonidine (brand name: Catapres®), Losartan Potassium (brand name: Cozaar®), Furosemide (brand name: Lasix®), and Atenolol (brand name: Tenormin®). Plaintiffs’ expert, Dr. Susan Vassallo, M.D.’s uncontroverted testimony at trial was that Plaintiffs’ medications “prevent their ability to respond to heat.” As it relates to Ball, Dr. Vassallo testified that his medication “impairs the ability of the body to cool.” Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.
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24. During the trial, Ball also testified that the heat conditions in death row cause him to experience profuse sweating, swelling of his joints, hands, ankles, and keloids24, tingling in his hands and feet, dizziness, lightheadedness, and headaches. Ball further testified that it is difficult to sleep at night due to the heat in the housing tier. 25. According to Ball, he copes with the heat by drinking water, lying on the cell floor, creating “cool towels” by wetting his towels or wrapping them in ice, and taking off his shirt. 26. Ball testified that he does not have direct access to the ice chest during the twenty-three hours in which he is confined his cell, and that he is dependent on other inmates, who are on their tier time, to distribute ice to him. 27. Ball also testified that the lukewarm sink water, warm showers, and fans do not provide significant relief from the heat. 28. Ball’s uncontroverted testimony was that the mounted fans occasionally break, and are not always immediately fixed by Angola’s maintenance staff.
C. Plaintiff Nathaniel Code 29. Plaintiff Code is fifty-seven years old. He has been on death row for twenty-two years. Code currently lives in tier H, cell 16.25
24 Ball testified that he has keloid scars that become inflamed and painful due to the heat. 25 Code testified that he also lived in tier F and tier C.
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30. It is uncontroverted that Code suffers from hypertension, obesity and hepatitis. To treat his hypertension, Code takes a number of medications that make him more susceptible to heat-related illness.26 31. During the trial, Code testified that during the summer months he “languishes” in the heat from sunrise until approximately 2:00 a.m. when the tier cools down. According to Code, he is subjected to direct sunlight through the window across from his cell, which prevents him from getting relief from the heat. 32. During the trial, Code testified that he avoids overheating by lying as still as possible. However, he must avoid lying in one position for too long to prevent that part of his body from getting too hot. 33. Code also testified that the heat causes him to sweat profusely, feel dizzy and light-headed, and experience headaches. He further testified that the heat conditions disturb his sleep patterns and disorient him, causing him to forget where he placed objects inside his cell. The heat conditions also cause Code to experience a “wave” over his body, which he described as a tingling sensation that moves from his feet to his head. 34. Code testified that he copes with the heat by wearing light clothing, drinking water, and creating “cool towels” by wrapping ice into his towels.
26 Specifically, Code takes the following medications on a daily basis: Losartan Potassium (brand name: Cozaar®), Hydrochlorothiazide, and Amlodipine (brand name: Norvasc®). Dr. Vassallo’s uncontroverted testimony at trial was that Plaintiffs’ medications “prevent their ability to respond to heat.” As it relates to Code, Dr. Vassallo testified that his medications also impair his body’s ability to cool.” Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.
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35. Code testified that he does not have direct access to the ice chest during the

twenty-three hours in which he is confined to his cell, and that he is dependent on

other inmates, who are on their tier time, to distribute ice to him.

36. According to Code, the lukewarm sink water, warm showers, and fans do not

provide adequate relief from the heat.

37. He further testified that the vent in his cell does not work, and that Angola’s

maintenance staff has yet to repair it. This testimony was not contested by

Defendants.

38. According to Code, the only time he has access to air conditioned areas is when

he has an attorney visit, personal visit, or when he goes to the doctor. He testified that

he goes to the doctor or has an attorney or personal visit only once every two months:

BY MS. MONTAGNES: . . . Any visits outside of the tier. How long between vists?

BY MR. CODE:

Oh, okay. It’s at least two months between any of those. Even if I get some of all of them, some personal visits, doctor visits, and attorney visits, it’s at least two months between them. I can’t think of any of them being close[r] than two months.

Trial Transcript, Testimony of Nathaniel Code, Aug. 5, 2013.

D. Plaintiff James Magee

39. Plaintiff Magee is thirty-five years old. He has been on death row for three

years. Magee lives in tier A, cell 13.27

27 Magee also testified that he has also lived in tier C. 21
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40. It is uncontroverted that Magee suffers from hypertension, high cholesterol, and depression. To treat his hypertension, high cholesterol, and depression, Magee takes a variety of medications that make him more susceptible to heat-related illnesses.28 41. During the trial, Magee described his housing conditions as a “sauna” in the morning and an “oven” in the afternoon. According to Magee, during the summer months, he is often hot and sweaty, experiences headaches, nausea, dizziness, lightheadedness, and has difficulty breathing and sleeping. 42. Magee testified that he tries to cope with the heat by wetting his t-shirt with the water from his cell sink, standing close to cell bars to get air from the mounted fan, and creating “cool towels.” He further testified that he attempts to cool down his cell by wiping the cell walls and floor with “cool towels.” 43. Magee testified that he does not have direct access to the ice chest during the twenty-three hours in which he is confined to his cell, and that he is dependent on other inmates, who are on their tier time, to distribute ice to him. 44. Magee further testified that the lukewarm sink water, warm showers, and fans do not provide relief from the heat.
28 Specifically, Magee takes the following medications on a daily basis: Amlodipine (brand name: Norvasc®), Clonidine (brand name: Catapres®), Cholestyramine, Fluoxetine (brand name: Prozac®) and Mirtazapine (brand name: Remeron®). Dr. Vassallo’s uncontroverted testimony at trial was that Plaintiffs’ medications “prevent their ability to respond to heat.” As it relates to Magee, Dr. Vassallo testified that his medication “affects his body’s ability to adjust to and tolerate the heat.” Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.
22
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E. The Data Collected by United States Risk Management 45. Neither the United States Court of Appeals for the Fifth Circuit, nor any other federal court of appeals, has established a constitutionally precise temperature, humidity level, or heat index that may constitute cruel and unusual punishment, in violation of the Eighth Amendment. Thus, this Court, like other courts, is left to establish the temperature, humidity level, heat index, and/or physical and/or medical conditions at which there has been a violation of Plaintiffs’ constitutional rights. Accordingly, the Court required the parties’ to retain a neutral third-party expert to collect, analyze, and disseminate temperature, humidity, and heat index data for a period of twenty-one days. The following is a summary of the data, which shall serve as the foundation of the Court’s conclusions of law.
1. The Data Collection Period 46. On July 12, 2013, the Court ordered the parties to retain neutral third-party expert, United States Risk Management, L.L.C. (“USRM”) to collect temperature and humidity data, and calculate the heat index in the death row tiers for exactly twentyone days.29 (Docs. 36, 24.) Immediately thereafter, USRM installed seven 3M QUESTempE 46 Waterless Heat Stress Monitors in tiers A, B, C, F, G, and H. USRM also installed an external weather station outside of the death row tiers to capture
29 The Court also ordered the parties to collect the wetbulb globe temperature. The wetbulb globe temperature (“WBGT”) is a measure of heat stress in direct sunlight which takes into account temperature, humidity, wind speed, sun angle and cloud cover (solar radiation). This differs from the heat index, which takes into consideration temperature and humidity and is calculated for shady areas. Military agencies and the Occupational Safety Health Administration use the WBGT as a guide to managing workload in direct sunlight. WetBulb Globe Temperature, National Weather Service Weather Forecast Office, http://www.srh.noaa.gov/tsa/?n=wbgt (last visited Dec. 17, 2013). Although wetbulb globe temperature data was provided to the Court, it was not used in the Court’s analysis.
23
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external “weather link” data. The USRM monitors collected data inside each of the six tiers, and outside, once per hour from July 15, 2013 through August 5, 2013 (“the data collection period”). 47. The data collected by USRM established that while the temperature, humidity, and heat index in each tier varied from day-to-day, the heat index in all of the tiers exceeded 104 degrees30 at various times during the data collection period. 48. Further, the data collected by USRM established that the temperature, humidity, and heat index inside the death row tiers were, more often than not, the same or higher than the temperature, humidity, and heat index recorded outside of the death row tiers.
2. Tier A 49. The data collected in tier A proved to be slightly less extreme than the other tiers. However, the temperature, humidity, and heat index data recorded in tier A nonetheless presented an alarming trend. 50. The first reading was taken on July 15, 2013 at 2:45 p.m.31 At that time, the monitor recorded a temperature of 84 degrees and a heat index of 89 degrees.32
30 All temperature and heat index measurements herein are presented in degrees Fahrenheit. 31 One monitor was installed in cell 11 of tier A. 32 Hereinafter, “heat indices” shall refer to multiple heat index recordings. The Court also notes that some temperatures and heat indices were recorded and produced as round numbers, while other were recorded as numbers with one or two decimal points. All temperatures and heat indices presented herein are described in the same manner as produced by USRM.
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51. During the data collection period, the lowest recorded temperature was 80.42 degrees33 while the highest recorded temperature was 90.68 degrees.34 In contrast, the lowest recorded heat index was 84.2 degrees35 while the highest recorded heat index was 104.54 degrees.36 52. On each day of the collection period, the heat index rose to 92 degrees or higher. In other words, on every single day during the collection period, inmates housed in tier A were subjected to heat indices in the National Oceanic and Atmospheric Administration’s (“NOAA”) National Weather Service’s (“NWS”) “extreme caution” zone or higher.37 See Exhibit 1. 53. Notably, the heat index in tier A was recorded at 100 degrees or higher on five days: July 29, July 30, August 2, August 3, and August 4, 2013. Such heat indices are in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 54. Data from tier A also showed high heat indices for extended periods of time. For example, on August 3, 2013, the heat index remained between 99.5 and 102.02 degrees for thirteen hours, or from 9:13 a.m. to 10:13 p.m.
33 This temperature was recorded on July 20, 2013 at 5:17 a.m. 34 This temperature was recorded on August 4, 2013 from 4:59 to 6:59 p.m. 35 This heat index was also recorded on July 20, 2013 at 5:17 a.m. 36 This heat index was recorded on August 2, 2013 at 7:13 p.m. 37 The NWS defines heat index as “how hot weather ‘feels’ to the body.” Heat: A Major Killer, NWS Office of Climate, Water, and Weather Services, http://www.nws.noaa.gov/om/heat/index.shtml (last visited Dec. 17, 2013) [hereinafter Heat: A Major Killer]. The NWS’s Heat Index Chart uses relative humidity and air temperature to produce the “apparent temperature” or the temperature the body “feels.” According to the NWS, “[t]hese values are for shady location only. Exposure to full sunshine can increase heat index values by up to 15 [Fahrenheit]. Also, strong winds, particularly with very hot, dry air, can be extremely hazardous as the wind adds heat to the body.” Id.
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55. As noted above, the highest heat index (104.54 degrees) was recorded on August 2, 2013. On that day, from 11:13 a.m. to 11:13 p.m., the following heat indices were consecutively recorded: 99.5, 100.4, 100.94, 101.48, 102.92, 100.4, 101.84, 102.92, 104.54, 104, 103.46, 101.48, 101.3, all of which are in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 56. In sum, based on the data collected in tier A, the Court concludes that the inmates housed in this tier were consistently subjected to heat indices in the NWS’s “extreme caution” and “danger” zones, which, according to the NWS, “may cause increasingly severe heat disorders with continued exposure or physical activity.”38 See Exhibit 1.
3. Tier B 57. The data collected in tier B reflected higher temperatures and heat indices than in tier A. The first reading in tier B was taken on July 15, 2013 at 2:56 p.m.39 At that time, the recorded temperature was 83.6 degrees and the heat index was 90 degrees. 58. During the data collection period, the lowest recorded temperature was 79.52 degrees40 while the highest recorded temperature was 90.68 degrees.41 In contrast, the
38 Heat: A Major Killer, supra note 37. 39 One monitor was installed in cell 8 of tier B. 40 This temperature was recorded on July 19, 2013 at 6:03 a.m. and again at 7:03 a.m., and on July 20, 2013 a 7:03 a.m. 41 This temperature was recorded on August 2, 2013 at 4:50 p.m. and again at 5:50 p.m., and again on August 4, 2013 at 6:04 p.m.
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lowest recorded heat index was 83.84 degrees42 while the highest recorded heat index was 109.94 degrees.43 59. On each day of the collection period, the heat index rose to 92 degrees or higher. In other words, on every single day during the collection period, inmates housed in tier B were subjected to heat indices in the NWS’s “extreme caution” zone or higher. See Exhibit 1. 60. Indeed, the heat index in tier B was recorded at 100 degrees or higher on ten days: July 22, July 24, July 28, July 30, July 31, August 1, August 2, August 3, August 4, and August 5, 2013. Such heat indices are in the NWS’s “extreme caution” and “danger” zones. See Exhibit 1. 61. High heat indices for extended periods of time were typical in tier B. For example, on July 29, 2013, the heat index remained between 98.24 and 102.2 degrees for eights hours, or from 1:23 p.m. to 9:23 p.m. On July 30, 2013, the heat index remained between 99.14 and 103.28 degrees for nine hours, or from 11:23 a.m. to 8:51 p.m. On August 1, 2013, the heat index remained between 100.4 and 103.82 degrees for eleven hours, or from 11:51 a.m. to 10:51 p.m. On August 3, the heat index remained between 100.4 and 105.08 degrees for thirteen hours, or from 8:50 a.m. to 9:50 p.m. 62. As noted above, the highest heat index (109.94 degrees) was recorded on August 2, 2013. Indeed, one of the longest periods of heat indices reaching 100 degrees or
42 This heat index was recorded on July 26, 2013 at 6:43 p.m. 43 This heat index was recorded on August 2, 2013 at 7:50 p.m.
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above was recorded on that day. Specifically, from 11:50 a.m. to 11:50 p.m., the following heat indices were consecutively recorded: 103.82; 104.54; 101.48; 105.8; 102.92; 102.92; 105.08; 107.42; 109.94; 104.36; 102.2; 102.2; and 103.28. 63. Based on the data collected in tier B, the Court concludes that the inmates housed in this tier were consistently, and for long periods of time over the course of multiple days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1.
4. Tier C 64. The data collected in tier C reflected higher temperatures and heat indices than in any of the other tiers. The first reading was taken on July 15, 2013 at 3:05 p.m.44 At that time, the recorded temperature was 86.4 degrees and the heat index was 92 degrees. 65. During the data collection period, the lowest recorded temperature was 85.1 degrees45 while the highest recorded temperature was 92.12 degrees.46 In contrast, the lowest recorded heat index was 89.96 degrees47 while the highest recorded heat index was 110.3 degrees48, which is well within the NWS’s “danger” zone. See Exhibit 1.
44 One monitor was installed in cell 11 of tier C. 45 This temperature was recorded on July 20, 2013 at 6:34 a.m., and again at 7:34 a.m. 46 This temperature was recorded on August 4, 2013 at 6:22 p.m., and again at 7:22 p.m. 47 This heat index was also recorded on July 20, 2013 at 4:34 a.m. 48 This heat index was recorded on August 2, 2013 at 7:38 p.m., and again at 8:38 p.m.
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66. The data shows that the heat index in tier C rose to, and remained above, 100 degrees for two or more hours on thirteen of the twenty-one days in the collection period. 67. The Court also notes that, despite Defendants’ installation of awnings over the windows in tier C on or about July 26, 2013, the most alarming heat index figures were recorded between July 29 and August 5, 2013. For example, on July 29, the heat index remained between 99.32 and 103.46 degrees for ten hours, or from 1:16 p.m. to 11:16 p.m. On July 30, the heat index remained between 100.4 and 107.42 degrees for ten hours, or from 1:16 p.m. to 11:58 p.m. On August 1, 2013, the heat index remained between 100.04 and 106.88 degrees for fifteen consecutive hours, or from 8:58 a.m. to 11:58 p.m. The Court notes that, but for the awnings installed by Defendants over the windows in tier C, the heat indices recorded in tier C may have been higher. 68. As noted above, the highest heat index (110.3 degrees) was recorded on August 2, 2013. On that day, the heat index remained at 100 degrees or above for fifteen hours, or from 8:58 a.m. to 11:38 p.m. 69. Further, the data shows that the heat index in tier C did not drop below 100 degrees from August 3 through August 5, 2013. For example, on August 3, 2013, from 12:38 a.m. to 11:38 p.m., the following heat indices were consecutively recorded: 106.16, 106.16, 105.08, 104.54, 105.08, 104.54, 104, 102.56, 105.8, 105.8, 105.8, 104, 102.92, 102.56, 105.08, 104.54, 105.08, 107.24, 106.52, 108.32, 109.76, 105.62, 105.08, and 104.
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70. This 100+ degree heat index trend continued until the last reading on August 5, 2013 at 12:22 p.m. 71. By comparison, on August 3, 2013 from 12:30 a.m. to 11:30 p.m., the following heat indices were recorded by the outside weather monitor: 93.4, 92.4, 90.6, 88.5, 87.6, 86.4, 82.9, 83.6, 92.6, 98.4, 98.8, 104.3, 105.5, 105.2, 110.6, 110.8, 109.2, 109.5, 108.7, 104.7, 95.3, 89.3, 86.4, and 84.3. 72. This data established that there were multiple, consecutive hours during which inmates housed in tier C were subjected to heat indices up to twenty degrees higher than outside the housing tier. 73. Based on the data collected in tier C, the Court concludes that the inmates housed in this tier were consistently, and for long periods of time over the course of multiple days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. The Court also concludes that inmates housed in tier C were subjected to heat indices up to twenty degrees higher than the heat indices recorded outside the housing tier.
5. Tier F 74. The first reading in tier F was taken on July 15, 2013 at 3:14 p.m.49 At that time, the recorded temperature was 81.8 degrees and the heat index was 87 degrees.
49 One monitor was installed in cell 6 of tier F. 30
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75. During the data collection period, the lowest recorded temperature was 80.2 degrees50 while the highest recorded temperature was 91.04 degrees.51 In contrast, the lowest recorded heat index was 85 degrees52 while the highest recorded heat index was 106.16 degrees.53 76. On each day of the collection period, the heat index rose to 92 degrees or higher. In other words, on every single day during the collection period, inmates housed in tier F were subjected to heat indices in the NWS’s “extreme caution” zone or higher. See Exhibit 1. 77. Notably, the heat index in tier F was recorded at 100 degrees or higher on eight days: July 17, July 29, July 30, July 31, August 1, August 2, August 3, and August 4, 2013. Such heat indices are in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 78. Like the data collected from the other death row tiers, the data collected from tier F showed high heat indices for extended periods of time. For example, on August 1, 2013, the heat index remained between 100.4 and 105.62 degrees for eight hours, or from 2:15 p.m. to 10:15 p.m. On August 4, 2013, the heat index remained between 101.3 and 104.54 degrees for 8 hours, or from 12:17 p.m. to 7:17 p.m. On August 3,
50 This temperature was recorded on July 18, 2013 at 7:14 a.m. 51 This temperature was recorded on August 4, 2013 at 5:17 p.m. 52 This heat index was recorded on July 16, 2013 from 3:14 a.m. to 7:14 a.m., and again on July 18, 2013 from 4:14 a.m. to 7:14 a.m. 53 This heat index was recorded on August 2, 2013 at 7:32 p.m.
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2013, the heat index remained between 99.86 and 105.08 degrees for 12 hours, or from 9:32 a.m. to 9:32 p.m. 79. As noted above, the highest heat index (106.16 degrees) was recorded on August 2, 2013. The Court notes that one of the longest periods of heat indices reaching 100 degrees or above was also recorded on this day. Specifically, from 11:32 a.m. to 11:32 p.m., the following heat indices were consecutively recorded: 101.84, 102.74, 101.3, 103.46, 102.38, 100.94, 102.92, 102.92, 106.16, 103.82, 102.2, 101.3, 102.74. All of which are in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 80. Based on the data collected in tier F, the Court concludes that the inmates housed in this tier were consistently, and for long periods of time over the course of multiple days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1.
6. Tier G 81. In their submissions to the Court and during the trial on the merits, Plaintiffs argued that the heat indices in cells closest to the tier entrance are lower than the heat indices in cells at the rear of the tier, or furthest from the tier entrance. Thus, Plaintiffs allege that inmates who are assigned to cells at the rear of the tier are subjected to more extreme conditions of confinement than inmates who are assigned to cells that are close to the tier entrance. 82. To determine whether Plaintiffs’ allegations have merit, two monitors were placed in tier G: one approximately halfway down the tier in cell 8, and one at the very rear of the tier in cell 16.
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83. The data collected in both cells revealed an appreciable difference in the recorded temperatures and heat indices in cell 8 versus cell 16. 84. The first reading in cell 8 was taken on July 15, 2013 at 3:25 p.m. At that time, the recorded temperature was 86.4 degrees and the heat index was 91.4 degrees. For reasons that are unknown to the Court, the first reading was not taken in cell 16 until three days later, on July 18, 2013. 85. During the data collection period, the lowest recorded temperature in cell 8 was 80.06 degrees54 while the highest recorded temperature was 91.04 degrees.55 In contrast, the lowest recorded temperature in cell 16 was 85.46 degrees56 while the highest recorded temperature was 91.58 degrees.57 86. The lowest recorded heat index in cell 8 was 84.02 degrees58 while the highest recorded heat index was 107.42 degrees.59 In contrast, the lowest recorded heat index in cell 16 was 91.22 degrees60 while the highest recorded heat index was 110.3 degrees.61
54 This temperature was recorded on July 20, 2013 at 5:14 a.m. 55 This temperature was recorded on August 4, 2013 at 5:11 p.m., and again at 6:11 p.m. 56 This temperature was recorded on July 19, 2013 at 7:26 a.m. 57 This temperature was recorded on August 3, 2013 at 6:25 p.m., 7:25 p.m., and 8:25 p.m. This temperature was also recorded on August 4, 2013 at 5:13 p.m., 6:13 p.m., and 7:13 p.m. 58 This heat index was recorded on July 19, 2013 at 6:14 a.m. 59 This heat index was recorded on August 2, 2013 at 12:21 p.m. 60 This heat index was recorded on July 19, 2013 at 3:26 a.m. and 4:26 a.m. 61 This heat index was recorded on August 3, 2013 at 8:25 p.m.
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87. On each day of the collection period, the heat index rose to 93.2 degrees or higher in cell 8, and 96.44 degrees or higher in cell 16. In other words, on every single day during the collection period, inmates housed nearer to and furthest from the tier entrance were subjected to heat indices in the NWS’s “extreme caution” zone or higher. See Exhibit 1. 88. However, as noted below, the data shows consistently higher heat indices in cell 16, as compared to cell 8. 89. According to the data collected by USRM, the heat index rose to 100 degrees or above in cell 8 on twelve days: July 22, July 23, July 24, July 26, July 29, July 30, July 31, August 1, August 2, August 3, August 4, and August 5, 2013. 90. The data also established high heat indices for extended periods of time in cell 8. For example, on August 2, 2013, the heat index remained between 101.84 and 107.42 degrees for twelve hours, or from 11:21 a.m. to 11:21 p.m. In another example, on August 3, 2013, the heat index remained between 100.4 and 105.08 degrees for fourteen hours, or from 9:21 a.m. to 11:21 p.m. 91. Even more alarming, however, are the recorded heat indices further down the tier in cell 16. 92. In cell 16, the heat index was recorded at 100 degrees or higher on fifteen consecutive days: July 21, July 22, July 24, July 25, July 26, July 27, July 28, July 29, July 30, July 31, August 1, August 2, August 3, August 4, and August 5, 2013.62
62 For reasons unknown to the Court, no data was recorded in tier G, cell 16 on July 23, 2013. 34
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93. The data collected from cell 16 also shows high heat indices for extended periods of time. For example, on five consecutive days during the data recording period (August 1 - 5, 2013), the heat index did not dip below 99.14 degrees. In other words, inmates assigned to cells at the rear of tier G were subjected to heat indices of 99.14 degrees or above for 120 consecutive hours, while inmates housed in cells at the front of the tier experienced lower heat indices. 94. As noted above, the highest heat index in cell 16 (110.3 degrees) was recorded on August 3, 2013. Notably, one of the longest periods of heat indices reaching 100 degrees or above was also recorded on that day. Specifically, from 12:25 a.m. to 11:25 p.m., the following heat indices were consecutively recorded: 108.68, 107.96, 106.88, 106.16, 103.46, 102.92, 102.56, 103.46, 105.08, 106.34, 109.4, 105.8, 107.42, 104.54, 105.08, 103.46, 104, 104.54, 105.98, 107.24, 110.3, 106.88, 105.62, and 105.08. 95. By comparison, on August 3, 2013 from 12:30 a.m. to 11:30 p.m., the following heat indices were recorded by the outside weather monitor: 93.4, 92.4, 90.6, 88.5, 87.6, 86.4, 82.9, 83.6, 92.6, 98.4, 98.8, 104.3, 105.5, 105.2, 110.6, 110.8, 109.2, 109.5, 108.7, 104.7, 95.3, 89.3, 86.4, 84.3. 96. This data established that there were multiple, consecutive hours during which the inmates housed in cells at that rear of tier G were subjected to heat indices that were up to twenty degrees higher than the heat indices recorded outside of the death row facility. 97. Based on the data collected in tier G, the Court concludes that the inmates housed in this tier were consistently, and for long periods of time over the course of
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multiple days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. The Court notes that, but for the awnings installed by Defendants over the windows in tier G on or about July 26, 2013, such temperatures and heat index recordings may have been higher. 98. Based on the data collected in tier G, the Court further concludes that inmates who are housed in cells at the rear of the respective housing tiers, or furthest away from the tier entrance, are subjected to more extreme conditions of confinement than inmates who are housed in cells closer to the entrance of each respective tier.
7. Tier H 99. The data collected from tier H reveals slightly lower temperatures and heat indices than tiers C and G. However, as noted below, during the undersigned’s tour of tier H, the undersigned noted that the tier is partially shaded by another tier. 100. The first reading was taken in this tier on July 15, 2013 at 3:32 p.m.63 At that time, the recorded temperature was 82.1 degrees and the heat index was 87 degrees. 101. During the data collection period, the lowest recorded temperature was 78.26 degrees64 while the highest recorded temperature was 92.66 degrees.65 In contrast, the lowest recorded heat index was 81.5 degrees66 while the highest recorded heat index was 107.78 degrees.67
63 One monitor was installed in cell 8 of tier H. 64 This temperature was recorded on July 19, 2013 at 6:23 a.m. 65 This temperature was recorded on August 4, 2013 5:53 p.m. 66 This temperature was recorded on July 19, 2013 at 6:23 a.m. 67 This heat index was recorded on August 2, 2013 at 6:43 p.m.
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102. On each day of the collection period, the heat index rose to 90 degrees or higher. In other words, on every single day during the collection period, inmates housed in tier H were subjected to heat indices in the NWS’s “caution” or “very warm” zone (hereinafter “caution” zone) or higher. See Exhibit 1. 103. The data also shows that the heat index rose to 100 degrees or higher on seven consecutive days: July 29, July 30, July 31, August 1, August 2, August 3, and August 4, 2013. 104. The data further established high heat indices for extended periods of time. For example, on August 1, 2013, the heat index remained between 99.32 and 105.08 degrees for nine hours, or from 1:41 to 10:41 p.m. On August 3, 2013, the heat index remained between 99.5 and 104.54 degrees for nine hours, or from 1:43 to 10:43 p.m. 105. As noted above, the highest heat index (107.78 degrees) was recorded on August 2, 2013. Notably, one of the longest periods of heat indices reaching 100 degrees or above was also recorded on this day, and the following morning. Specifically, from 12:43 p.m. on August 2 to 1:43 a.m. on August 3, the following heat indices were consecutively recorded: 101.3, 100.94, 104, 104, 103.64, 105.44, 107.78, 107.42, 104.54, 102.92, 100.76, 102.2, 100.4, 100.4. Such heat indices fall squarely within the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 106. Although the data collected from tier H is less alarming than the data collected from tiers C and G, based on the data, the Court concludes that the inmates housed in this tier were also consistently, and for long periods of time over the course of multiple
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days, subjected to heat indices in the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. 107. In sum, the data collected by USRM during the data collection period unequivocally established that inmates housed in each of the death row tiers are consistently, and for long periods of time, subjected to high temperatures and heat indices in the NWS’s “caution,” “extreme caution,” and “danger” zones. See Exhibit 1. 108. The data also established that inmates in at least two of the tiers are frequently subjected to heat indices that are up to twenty degrees higher than the heat indices recorded outside the death row facility. 109. Further, the data established that inmates who are housed in cells at the rear of the respective housing tiers, or furthest away from the tier entrance, are subjected to more extreme conditions of confinement than inmates who are housed in cells closer to the entrance of each respective tier.
F. The Court’s Observation of the Death Row Tiers 110. On August 12, 2013 from approximately 2:15 p.m. to 3:00 p.m., the undersigned observed Angola’s death row facility, including the administrative offices, visitation rooms, control center, and housing tiers A, C, G, and H. Counsel for both parties, as well as Defendant Norwood, accompanied the undersigned during the site visit. 111. During the undersigned’s tour of the death row facility, which was conducted after the data collection period, the Court made factual observations which support the Court’s findings of fact.
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112. Approximately one and one half hour before the undersigned’s tour, Angola, Louisiana and the surrounding areas sustained thunderstorms and heavy rain. By 2:15 p.m., the thunderstorms and rain had ceased. However, the sky was densely overcast and the temperature had noticeably decreased from a high of 91 degrees at 12:42 p.m.68 113. During the site visit, the Court observed that despite the decreased outside temperature and overcast sky, the temperature inside the housing tiers was appreciably higher than the temperature outside. For example, according to Defendants’ mercury-in-glass thermometers69, the temperature in tiers A, C, G, and H were 88 degrees, 89 degrees, 94 degrees, and 89 degrees, respectively. However, weather data collected from the closest weather station indicates that the outside weather temperature was only 77 degrees at 2:00 p.m. 114. The Court also observed that tier H is shaded by one of the other housing tiers. 115. The Court also observed the windows, fans, and cell vents in tiers A, C, G, and H. In the Court’s observation, the windows, fans, and cell vents did not provide a cooling effect or relief from the heat conditions in the tier. 116. During the site visit, the undersigned detected the cool air that blew into the tiers from the central corridor each time a tier entrance was opened. The Court noted
68 According to a Climatological Report obtained from National Weather Service Forecast Office, the maximum temperature recorded at the Baton Rouge Regional Airport on August 12, 2013 was 91 degrees. That temperature was recorded at 12:42 p.m. Climatological Report (Daily), http://www.nws.noaa.gov/view/validProds.php?prod=CLI (last visited Aug. 13, 2013). 69 Each of Defendants’ mercury-in-glass thermometers were located at the rear of each tier, or on the wall furthest away from the tier entrance.
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that cool air could be detected for the few seconds that a tier entrance remained open, while standing near the entrance of the tier, but that the cool air could not be detected while standing at the rear of the tier. 117. While the Court did not attempt to measure the temperature of the cold and hot water from the in-cell faucets, the undersigned noted that the cold water was lukewarm to the touch. 118. The Court further observed that although each fan was positioned to be shared by two cells, the fans did not provide equal amounts of air flow to each cell. 119. The undersigned did not observe dirt, debris, or insects in the ice chests or in the water from the in-cell faucets. 120. The Court observed, however, that the walls of the housing tiers were hot to the touch, and that the security bars separating the cells from the tier walkway were very warm to the touch. VI. CONCLUSIONS OF LAW
A. 42 U.S.C. § 1983 1. “Section 1983 imposes liability on anyone who, under color of state law, deprives a person ‘of any rights, privileges, or immunities secured by the Constitution and laws.’ . . . [T]his provision [also] safeguards certain rights conferred by federal statutes.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Maine v. Thiboutot, 448 U.S. 1 (1980)). 2. Here, the gravamen of Plaintiffs’ Section 1983 claim is that Defendants have subjected them to cruel and unusual punishment, in violation of the Eighth
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Amendment to the United States Constitution, made applicable to the States “by

reason of the Due Process Clause of the Fourteenth Amendment.” Robinson v.

California, 370 U.S. 660, 675 (1962).

3. Specifically, Plaintiffs allege that by subjecting them to “extreme conditions of

confinement, specifically excessive heat, with full knowledge of the dangerousness of

those conditions, Defendants [ ] are acting and have acted with deliberate indifference

to Plaintiffs’ serious health and safety needs, in violation of their rights under the

Eighth and Fourteenth Amendments to the United States Constitution.” (Doc 1, ¶¶

12, 67-68.) 1.

The Eighth Amendment

4. The Eighth Amendment to the United States Constitution provides: “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII.

5. It is well settled that the United States Constitution does not require

comfortable prisons. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Rhodes v.

Chapman, 452 U.S. 337, 349 (1981). However, it is equally well established that

conditions of confinement “must not involve the wanton and unnecessary infliction of

pain.” Rhodes, 452 U.S. at 347.

6. The Eighth Amendment’s prohibition against cruel and unusual punishment

requires that prisoners be afforded “humane conditions of confinement,” including

adequate food, clothing, shelter, and medical care. Farmer, 511 U.S. at 832; Gates v.

Cook, 376 F.3d 323, 332 (5th Cir. 2004) (holding that a prison official’s obligation

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includes “ensur[ing] that inmates receive adequate food, clothing, shelter, and medical care,” as well as “reasonable measure[s] to ensure the safety of the inmates”). 7. Thus, “[t]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Gates, 376 F.3d at 332; Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“[C]onditions of confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need.”). 8. Such “conditions of confinement” that are subject to review include temperature conditions. Wilson, 501 U.S. at 303 (stating that “the temperature [a prisoner] is subjected to in his cell” is “a condition of his confinement”) (quotation marks omitted); Gates, 376 F.3d at 333 (same). 9. An Eighth Amendment claim has two components. Wilson, 501 U.S. at 298. 10. First, the deprivation alleged must be sufficiently serious. Wilson, 501 U.S. at 298. “[O]nly those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave” to constitute cruel and unusual punishment. Id. (quoting Rhodes, 452 U.S. at 347). 11. A court must measure a prison’s conditions against “‘the evolving standards of decency that mark the progress of a maturing society,’ and not the standards in effect during the time of the drafting of the Eighth Amendment.” Gates, 376 F.3d at 332-33 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). Further, the Supreme Court of the United States has noted that “the length of confinement cannot be ignored in
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deciding whether the confinement meets the constitutional standards. A filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks or months.” Hutto v. Finney, 437 U.S. 678, 686-87 (1978). 12. Second, the prison official must have acted with a sufficiently culpable state of mind. See Farmer, 511 U.S. at 838; Wilson, 501 U.S. at 305. In condition of confinement cases, the Court is required to determine if the prison official acted with deliberate indifference, which the Supreme Court has defined as knowing of and disregarding an excessive risk to inmate health or safety. Farmer, 511 U.S. at 836 (“It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.”). 13. Thus, to demonstrate that prison conditions violate the Eighth Amendment, an inmate must meet the following requirements: (1) an objective requirement showing that the condition is “so serious as to ‘deprive prisoners of the minimal civilized measure of life’s necessities,’ as when it denies the prisoner some basic human need;” and (2) a subjective requirement, which mandates a showing that prison officials have been “‘deliberately indifferent’ to inmate health or safety.” Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (citing Farmer, 511 U.S. at 834).
a. The Conditions of Confinement at Angola’s Death Row Constitute a Substantial Risk of Serious Harm to Plaintiffs
14. It is axiomatic that a prison official’s failure to provide inmates relief from extreme temperatures may constitute an Eighth Amendment violation. Wilson, 501
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U.S. at 304 (“low cell temperature at night combined with a failure to issue blankets” could constitute an Eighth Amendment violation); Smith v. Sullivan, 553 F.2d 373, 381 (5th Cir. 1977) (“If the proof shows the occurrence of extremes of temperature that are likely to be injurious to inmates’ health relief should be granted . . . .”); Blackmon v. Garza, 484 F. Appx. 866, 869 (5th Cir. 2012) (unpublished) (“Allowing a prisoner to be exposed to extreme temperatures can constitute a violation of the Eighth Amendment.”); Valigura v. Mendoza, 265 F. Appx. 232, 235 (5th Cir. 2008) (unpublished) (“[T]emperatures consistently in the nineties without remedial measures, such as fans, ice water, and showers, sufficiently increase the probability of death and serious illness so as to violate the Eighth Amendment.”). 15. Further, the Fifth Circuit has held that “extreme heat” coupled with a failure to provide cooling devices such as “fans, ice water, and daily showers” is a “condition [that] presents a substantial risk of serious harm to the inmates,” particularly where such conditions are “open and obvious,” and where “inmates ha[ve] complained of symptoms of heat-related illness.” Gates, 376 F.3d at 339-40 (determining that an Eighth Amendment violation justified an “injunction direct[ing 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”) (emphasis added). 16. A survey of the opinions from various Circuit Courts of Appeals reveals that other courts have also recognized that a prison official’s failure to provide relief from extremely high temperatures may constitute an Eighth Amendment violation. See
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Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013) (“[I]t is well settled that exposing prisoners to extreme temperatures without adequate ventilation may violate the Eighth Amendment.”); Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010) (“The district court did not err . . . in concluding that dangerously high temperatures that pose a significant risk to detainee health violate the Eighth Amendment.”); Chandler v. Crosby, 379 F.3d 1278, 1294 (11th Cir. 2004) (“[T]he Eighth Amendment applies to prisoner claims of inadequate cooling and ventilation.”). 17. In Jones‘El v. Berge, 374 F.3d 541 (7th Cir. 2004), the United States Court of Appeals for the Seventh Circuit affirmed a district court’s enforcement order requiring air-conditioning of plaintiffs’ cells during summer heat waves following “the plaintiffs assert[ions] that they were subjected to extreme temperatures in violation of the Eighth Amendment.” Id. at 543-45. 18. In Tillery v. Owens, 907 F.2d 418 (3d Cir. 1990), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s determination that prison conditions were unconstitutional because, among other things, “[v]entilation [was] grossly inadequate” and “[t]here [were] no systems to control temperature or humidty, causing excessive odors, heat and humidity.” Id. at 423. 19. Indeed, Defendants do not contest this well established principle. 20. The Court notes that prior to the Fifth Circuit’s decision in Gates, the Fifth Circuit rejected a prisoner’s claim that the conditions in extended lockdown at Angola were unconstitutional because, among other things, his lockdown cell was inadequately cooled and the high temperature aggravated his sinus condition. Woods, 51 F.3d at
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581. In reaching its determination, the Court noted that the plaintiff “failed to present medical evidence of any significance,” and went on to state: “[w]hile the temperature in extended lockdown may be uncomfortable, that alone cannot support a finding that the plaintiff was subjected to cruel and unusual punishment in violation of the Eighth Amendment.” Id. 21. The Fifth Circuit has since clarified that “[t]he Woods court found that Woods had not presented medical evidence sufficient to state an Eighth Amendment violation; Woods does not stand for the proposition that extreme heat can never constitute cruel and unusual punishment.” Gates, 376 F.3d at 339. 22. The Court further notes that Woods is distinguishable from the case at bar. As noted above, Woods did not present medical evidence. Here, Plaintiffs have introduced credible medical evidence in the form of medical records and sworn testimony. Further, in Woods, the plaintiff failed to provide temperature data for his lockdown cell. Woods, 51 F.3d at 581 (indicating that the plaintiff complained of “high temperature . . . uncomfortable in itself,” but provided no data as to the actual temperatures in the extended lockdown cell). Here, temperature, humidity, and heat index data were collected, analyzed, and submitted to the Court by a neutral thirdparty expert.
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1.) The Uncontroverted Temperature, Humidity and Heat Index Data
23. According to the NWS, the average maximum temperature in July 2013 in Baton Rouge, Louisiana was 90.5.70 In August 2013, the average maximum temperature in Baton Rouge was 90.9 degrees.71 24. However, as summarized above, the uncontroverted USRM data established that, during July and August 2013, inmates housed in each of the death row tiers were frequently subjected to temperatures above 90.5 degrees. The uncontroverted USRM data also established that inmates housed in each of the death row tiers were frequently subjected to heat indices above 100 degrees. The data collected by USRM established that the temperature, humidity, and heat index recorded inside the death row tiers was, more often than not, the same or higher than the temperature, humidity, and heat index recorded outside of the death row facility.72 25. For example, as noted above, inmates housed in tiers C and G were frequently subjected to heat indices that were up to twenty degrees higher than the heat indices recorded outside. Indeed, the uncontroverted USRM data established that inmates housed in these two tiers were subjected to heat indices as high as 110.3 degrees.
70 National Weather Service Forecast Office, New Orleans/Baton Rouge, LA, http://www.nws.noaa.gov/climate/index.php?wfo=lix (last visited Dec. 17, 2013). 71 Id. 72 For example, as summarized above, inmates in tier C were subjected to heat indices up to twenty degrees higher than outside of the death row facility for multiple hours on August 3, 2013. Inmates housed at the rear of tier G were also were subjected to heat indices up to twenty degrees higher than outside of the death row facility for multiple hours on that day.
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26. As it relates to Plaintiffs, the data shows that inmates housed in tier A, including Plaintiff Magee, were subjected to heat indices at 100 degrees or higher on five days during the data collection period. Such heat indices fall squarely within the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. Indeed, the data established that on each day of the collection period, the heat index rose to 92 degrees or higher in tier A. 27. The data also shows that inmates housed in tier H, including Plaintiffs Ball and Code, were subjected to heat indices at 100 degrees or higher on seven consecutive days during the data collection period. Such heat indices fall squarely within the NWS’s “extreme caution” or “danger” zones. See Exhibit 1. The data established that on each day of the collection period, the heat index rose to 90 degrees or higher in tier H. 28. According to the NWS, “higher risk” individuals are at risk of sunstroke, heat cramps, or heat exhaustion with prolonged exposure to heat indices in the “extreme caution” or “danger” zones73:
73 Heat: A Major Killer, supra note 37. 48
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Heat Index 130E or higher
105E - 130E
90E - 105E 80E - 90E

Possible Heat Disorders for Individuals in Higher Risk Groups Heat Stroke/Sun Stroke Highly Likely
with Continued Exposure Sunstroke, Heat Cramps, or Heat Exhaustion Likely, and Heatstroke Possible with Prolonged Exposure
and/or Physical Activities Sunstroke, Heat Cramps, or Heat Exhaustion Possible with Prolonged Exposure and/or Physical Activities Fatigue Possible with Prolonged Exposure and/or Physical Activities

In other words, sunstroke, heat cramps, or heat exhaustion are “possible” among high risk individuals who are subjected to prolonged exposure to heat indices in the “extreme caution” zone, and “likely” among high risk individuals who are subjected to prolonged exposure to heat indices in the “danger” zone. See also Exhibit 1.
2.) The Risk of Harm to Plaintiffs Given Their Medical Conditions and Medications
29. The substantial risk of serious harm to Plaintiffs was further underscored by the sworn testimony of Plaintiffs’ expert, Dr. Susan Vassallo, M.D. (“Vassallo”). 30. Vassallo, who has been on the faculty of the New York University School of Medicine since 1993, is an attending physician in emergency medicine at Bellevue Hospital Center in New York, New York. Vassallo is a certified correctional heath

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professional and an expert on the effects of drugs and illness on an individual’s ability

to thermoregulate (or regulate one’s own body temperature).74

31. After observing the conditions in the death row facility, reviewing the USRM

data, and reviewing Plaintiffs’ medical records and Administrative Remedy Program

(“ARP”) requests75, Vassallo concluded that the heat conditions in the death row

facility: (1) put all three Plaintiffs at risk of heat-related illnesses, including heat

stroke; and (2) worsened Plaintiffs’ underlying medical conditions:

BY MR. KAMIN:

. . . And based upon your review of the information that you looked at, have you reached an opinion on that matter?

BY DR. VASSALLO:

Yes. My opinion is that the temperatures on death row are excessively hot, and put the prisoners there at risk of heat stroke, as well as worsening of their underlying medical conditions. In addition [ ], maybe death from those conditions, that is, cardiovascular disease, particularly.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

74 During the trial, the parties stipulated that Vassallo qualified as an expert “on the effect of drugs and [ ] illness on thermoregulation, including [the] effect of temperature on prisoners.” According to Vassallo, “. . . it’s not until your body loses [the] ability to regulate that the [body] temperature starts to rise and [it] becomes an emergency.” Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013. 75 According to the Louisiana Department of Public Safety and Corrections’ website, “[t]he Department and all local jails housing state offenders have established Administrative Remedy Procedures (ARP) through which an offender may, in writing, request a formal review of a complaint related to any aspect of his incarceration. Such complaints include actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, or challenges to rules, regulations, policies, or statutes. Through this procedure, offenders shall receive reasonable responses and where appropriate, meaningful remedies.” Frequently Asked Questions, Louisiana Department of Public Safety and Corrections, Corrections Services, http://www.doc.la.gov/quicklinks/offender-info/faq/ (last visited Dec. 17, 2013).
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32. Vassallo testified that each of Plaintiffs’ underlying medical conditions (i.e.

diabetes, hypertension, uncontrolled blood pressure) inhibit their ability to

thermoregulate.

33. Vassallo further testified that the Plaintiffs’ medications (i.e. beta blockers,

diuretics, antidepressants) also inhibit their ability to thermoregulate.

BY DR. VASSALLO:

Well, the reason that [there is] increased risk is because they have underlying health problems, including cardiovascular disease, diabetes, hypertension. Those are the problems that cause [increased risk]. Secondly, the medications that are required to treat them, which prevent their ability to respond to heat, which [are] well accepted to be risks. So those are some of the problems that the Plaintiffs have that make th[ese] conditions dangerous for them.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

34. Vassallo also testified about the increased risk to Plaintiffs Ball and Code, who

are over the age of fifty-five:

BY MR. KAMIN:

. . . Mr. Ball is actually sixty years old. Is that a factor in your assessment of his risk?

BY DR. VASSALLO:

Well, it is. Because, when you look at the CDC, which publishes something called an MMWR, which is the morbidity and mortality weekly report - it’s probably one of the most respected journals and publications in America today - [ ] you see very clearly that the people who are above the age of fifty-five to sixty are the ones who most commonly die during heat during heat episodes. They’re much more at risk. And so, the risk with age is shown in experimental studies. It’s shown in

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epidemiological studies of heat waves. We have a plethora of knowledge about that.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

35. When asked about the symptoms that Plaintiffs testified they experience during

the summer months, Vassallo testified as follows:

BY MR. KAMIN:

During his testimony yesterday at trial, Mr. Ball testified about symptoms including dizziness, sweating, light-headedness and weakness, all when it’s hot. Do those symptoms have any significance to you?

BY DR. VASSALLO:

Well, those are common temperatures symptoms that people will describe when they’re entering a phase of heat exhaustion.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

36. Vassallo further emphasized that even heathy individuals, and individuals

whose blood pressure is being controlled by medication are at risk of serious harm in

heat conditions like those in the death row tiers:

BY MR. KAMIN:

Okay. Does blood pressure control, due to medication, alleviate the risk of heat-related illness?

BY DR. VASSALLO:

No. I mean, the problem with these temperatures is that everybody is at risk in these temperatures. So, although the young, healthy individual who is not exercising is at less risk than an older individual with medical problems, like these three Plaintiffs. But every - this is - these temperatures are dangerous when you’re confined in this setting.

BY MR. KAMIN:

I just want to be clear for the Court’s benefit. That - does someone with hypertension - let’s

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take Mr. Magee as an example. Even though his hypertension is in the best state of the three Plaintiffs due to medication, does the hypertension itself still put him at risk for heat-related illness that he would not face if he did not have hypertension?

BY DR. VASSALLO:

The - my answer is yes. . . .

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

37. Vassallo’s expert opinion was further informed by her review of the USRM data:

BY MR. KAMIN:

And, so, Dr. Vassallo, based upon the data received from the neutral third party, USRM, has your opinion changed in any way from the report that you previously submitted?

BY DR. VASSALLO:

No.

BY MR. KAMIN:

What is your opinion, based upon the data submitted by USRM?

BY DR. VASSALLO:

My opinion is that the temperatures on death row are a health hazard to everybody, particularly to those individuals with health problems, such as cardiovascular disease, diabetes, hypertension. And that . . . it’s just a matter of time until there is a health emergency, such as heat stroke or myocardial infarction or stroke arises because of the temperatures on death row.

BY MR. KAMIN:

It is your opinion that the Plaintiffs, Nathaniel Code, Elzie Ball, and James Magee, are at imminent risk of severe physical harm due to the heat conditions on death row?

BY DR. VASSALLO:

Yes, it is.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

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38. During cross-examination, Vassallo testified as to how quickly one can have a

heat stroke:

BY MR. JONES:

Wouldn’t you expect in the medical records of Mr. Ball, for instance, who’s been on death row for fifteen years, to see some medical evidence of the effects of heat on him over that period of time?

BY DR. VASSALLO:

Well, no sir. The heat strokes that happened in Dallas, the heat strokes I’ve had in my entire career, I’ve had hundreds where I’ve been at the bedside of 110 degrees. Those people don’t have warning. The - they don’t have - there’s no warning with heat stroke. You don’t feel hot for five days or before or even one day. So, heat stroke is a failure of thermoregulation which is dramatic and catastrophic. It occurs suddenly. . . .

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

39. When further questioned by counsel for Defendants about the risk of heat

stroke, Dr. Vassallo testified as follows:

BY DR. VASSALLO:

. . . There are two pieces to the stress of the heat and the temperatures on death row. One is the worsening of their underlying medical conditions. And their risk of stroke, myocardial infarction, which is a heart attack, and et cetera. So, that is well supported in the literature. But you don’t have to have heat stroke for heat to do its - to be bad for you. And a sustained temperature such as they’re undergoing. The second piece is this issue of heat stroke. And that’s the piece that I don’t want to be misunderstood. That people can suffer suddenly from heat strike without ever having complained about the weather. . . .

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Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013. 40. The Court notes that Defendants failed to rebut Dr. Vassallo’s testimony regarding the risk of harm to Plaintiffs. Indeed, as noted above, Dr. Vassallo was subject to cross-examination. Yet, her testimony was largely uncontroverted. 41. Defendants point to evidence in the record that, prior to the instant litigation, Plaintiffs did not submit any formal written complaints, ARPs, or “sick call” requests as a result of the heat conditions. Defendants further contend that Plaintiffs’ medical records do not contain evidence of prior heat-related illnesses. 42. The record, however, is replete with evidence that Plaintiffs filed multiple ARPs complaining of the excessive heat conditions, prior to filing the instant litigation. See, e.g., Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013. 43. Further, prior complaints of heat-related illness are not a predicate for a finding that the conditions in Angola’s death row facility present a substantial risk of serious harm to Plaintiffs. “That the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Helling v. McKinney, 509 U.S. 25, 33 (1993). “It would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them.” Id. Accordingly, Plaintiffs need not establish that death or serious illness has occurred in order to establish a substantial risk of serious harm.76
76 Further, assuming, arguendo, that prior requests for medical assistance or complaints of heat-related illness are required, there is sufficient evidence in the record to support the conclusion that Plaintiffs were discouraged from submitting “sick call” requests because of the monetary and potential disciplinary consequences of doing so. Indeed, it is uncontested that Defendants’ “Health Care Request Form” includes the following acknowledgment above the signature and date lines:
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44. Additionally, the Court is not persuaded by Defendants’ argument that Plaintiffs’ lifestyle or diet choices - and not the heat conditions - are what increase Plaintiffs’ risk of harm. See Trial Transcript, Dr. Hal David Macmurdo, Aug. 7, 2013. It is uncontested that Plaintiffs’ conditions of confinement, including Plaintiffs’ food, beverage, and exercise options, are in the exclusive control of Defendants. While it is unclear from the record how often Plaintiffs are permitted to purchase beverages and snacks from the penitentiary canteen, even assuming, arguendo, that Plaintiffs are permitted to do so regularly, it belies logic to conclude that such beverages and snacks compose the majority of Plaintiffs’ diet. Rather, the majority of Plaintiffs’ diet is composed of beverages and food that are in the exclusive control of and provided by Defendants. See Trial Transcript, Testimony of Dr. Raman Singh, M.D., Aug. 7, 2013.77 Thus, Defendants’ argument is unavailing.
3.) Multiple Federal and State Agencies Have Recognized the Risk of Harm to Individuals Subjected to Extreme Heat
45. According to the Federal Emergency Management Agency (“FEMA”), “[m]ost heat disorders occur because the victim has been overexposed to heat or has over-
I understand that in accordance with Dept. Reg. No. B-06-001, I will be charged $3.00 for routine request [sic] for health care services, $6.00 for emergency request [sic] and $2.00 for each new prescription written and dispensed to me, with the exceptions noted in the referenced regulation. I am aware that if I declare myself a medical emergency and the health care staff finds that and [sic] emergency does not exist, I may be given a disciplinary report for malingering. 77 During the trial, Dr. Singh testified that his the Chief Medical and Mental Health Director for the all ninety of the Louisiana Department of Public Safety and Corrections’ correctional facilities, including Angola.
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exercised for his or her age and physical condition. Older adults, young children and
those who are sick or overweight are more likely to succumb to extreme heat.”78
46. Multiple federal agencies and the Louisiana Office of Public Health recognize
that the following human factors inhibit an individual’s ability to regulate
temperature: age, certain medical conditions, and use of certain medications.79
47. According to the Centers for Disease Control and Prevention (“CDC”),
individuals sixty-five years old or older, individuals who are physically ill, especially
those with heart disease or high blood pressure, and individuals with mental illness
are at greater risk to develop heat-related illnesses.80 Additional risk factors include:
“obesity, fever, dehydration, . . . poor circulation, . . . and prescription drug . . . use.”81
78 Extreme Heat, FEMA, http://www.ready.gov/heat (last visited Dec. 17, 2013) [hereinafter Extreme Heat]; see also Heat Wave - A Major Summer Killer, Louisiana Office of Emergency Preparedness, http://www.gohsep.la.gov/factsheets/heatwave.aspx (last visited Dec. 17, 2013) [hereinafter Heat Wave] (“Ranging in severity, heat disorders share one common feature: the individual has overexposed or over exercised for his age and physical condition in the existing thermal environment.”). 79 Heat, NWS, http://www.weather.gov/bgm/heat (last visited Dec. 17, 2013) [hereinafter Heat]; Frequently Asked Questions About Extreme Heat, Centers for Disease Control and Prevention, Emergency Preparedness and Response, http://www.bt.cdc.gov/disasters/extremeheat/faq.asp (last visited Dec. 17, 2013) [hereinafter Frequently Asked Questions About Extreme Heat] (“Those at greatest risk for heatrelated illness include infants and children up to four years of age, people 65 years of age and older, people who are overweight, and people who are ill or on certain medications.”); Excessive Heat Events Guidebook, June 2006, United States Environmental Protection Agency, http://www.epa.gov/hiri/about/pdf/EHEguide_final.pdf (last visited Dec. 17, 2013) [hereinafter Excessive Heat Events Guidebook]; DHH and DCFS Remind Residents to Stay Safe in Summer Heat: High Temperatures Put Louisianans at Risk, State of Louisiana Department of Health & Hospitals, Office of Public Health, http://dhh.louisiana.gov/index.cfm/newsroom/detail/2844 (last visited Dec. 17, 2013) [hereinafter High Temperatures Put Louisianans at Risk]. 80 Tips for Preventing Heat-Related Illness, CDC, Emergency Preparedness and Response, http://www.bt.cdc.gov/disasters/extremeheat/heattips.asp (last visited Dec. 17, 2013) [hereinafter Tips for Preventing Heat-Related Illness]. 81 Extreme Heat: A Prevention Guide to Promote Your Personal Health and Safety, CDC, Emergency Preparedness and Response, http://www.bt.cdc.gov/disasters/extremeheat/heat_guide.asp (last visited Dec. 17, 2013) [hereinafter Extreme Heat: A Prevention Guide].
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48. The CDC further advises, “[t]he risk for heat-related illness and death may increase among people using the following drugs: (1) psychotropics, which affect psychic function, behavior, or experience (e.g. haloperidol or chlorpromazine); (2) medications for Parkinson’s disease, because they can inhibit perspiration; (3) tranquilizers such as phenothiazines, butyrophenones, and thiozanthenes; and (4) diuretic medications or “water pills” that affect fluid balance in the body.”82 49. In addition to human risk factors, several environmental factors also increase the risk of heat-related illnesses and deaths. For example, according to FEMA, “[c]onditions that can induce heat-related illnesses include stagnant atmospheric conditions and poor air quality . . . [a]lso, asphalt and concrete store heat longer and gradually release heat at night, which can produce higher nighttime temperatures . . .”83 50. According to the NWS, successive days of heat with high nighttime temperatures also increases the likelihood that heat-related illnesses and deaths may occur.84 The NWS further advises that a building’s “overnight minimum heat index” is a factor that increases the impact of heat: “houses and buildings that do not have air conditioning will not cool down if the overnight minimum heat index remains above 75-80E and the area goes into a second hot day.”85
82 Frequently Asked Questions About Extreme Heat, supra note 79. 83 Extreme Heat, supra note 78. 84 Heat, supra note 79 (“Successive days of heat with high nighttime temperatures is really bad - fatalities will occur.”) (emphasis added). 85 Heat, supra note 79.
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51. The CDC further cautions that electric fans will not prevent heat-related illnesses when the temperature is in the high 90s.86 Specifically, the CDC warns that “[e]lectric fans may provide comfort, but when the temperature is in the high 90’s, fans will not prevent heat-related illness.”87 52. Instead, the CDC contends that “[a]ir conditioning is the strongest protective factor against heat-related illness.”88 Indeed, according to the CDC, “[e]xposure to air conditioning for a few hours a day will reduce the risk of heat-related illness.”89 53. Given the substantial risk of serious harm due to extreme heat, which has been recognized by multiple federal and state agencies, and the CDC’s recommendations, the Court is also not persuaded by Defendants’ argument that the conditions of confinement in the death row tiers are no different than the conditions in a “free” person’s home in which there no mechanical cooling or air conditioning is installed. While the Court recognizes that there are residents of this State who do not have air conditioning in their homes, it cannot be said that such conditions are analogous to the conditions of confinement at issue here. Indeed, when the temperature rises, “free” people are urged to take the precautions recommended by multiple federal and state agencies, and if need be, seek refuge in air conditioned buildings at will. In contrast, Plaintiffs are not permitted to take many of the precautions recommended by federal
86 Frequently Asked Questions About Extreme Heat, supra note 79. 87 Id. 88 Id. 89 Id.
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and state agencies, nor are they permitted to seek refuge in air conditioned buildings

at will.

54. In sum, the information published by multiple federal and state agencies

supports the conclusion that, considering Plaintiffs’ ages90, underlying medical

conditions and/or medications, the conditions of confinement in Angola’s death row

tiers create a substantial risk of serious harm to Plaintiffs.

4.) Multiple Federal and State Agencies Have Recognized the Importance of the Heat Index

55. During the trial, Defendants’ witness John “Jay” Grymes91 attempted to

minimize the importance of the heat index by characterizing it as merely a derived

number.

BY MR. HILBURN:

. . . What about the heat index? Can you explain what heat index means?

BY MR. GRYMES:

The heat index is a derived guideline estimate of the impact of the combination of temperature and atmospheric moisture on, ‘an average person.’

. . .

BY MR. HILBURN:

Okay. Are there any issues with respect to using particular heat index values without taking into account various environmental and physical factors?

90 The Court acknowledges that Plaintiff Magee is only thirty-five years old. However, the evidence supports the conclusion that his underlying medical conditions and medications place him in a higher risk category.
91 By stipulation of the parties, Grymes was accepted an as expert in the field of meteorology. He has worked as a meteorologist and climatologist for approximately thirty years.
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BY MR. GRYMES:

Well, the first thing you have to remember and this sometimes gets lost in this concept of heat index - it is a derived number. It’s not a real number. It, in fact, is sometimes called the apparent temperature. It’s what the air and humidity combination would feel like to the average person. . . . But it’s simply a guideline number.

Trial Transcript, Testimony of Jay Grymes, Aug. 6, 2013.

56. However, when further questioned by counsel for Plaintiffs, Grymes admitted

that when the heat index is high, he advises his television viewers so that they can

take the proper precautions.

BY MR. VORA:

Mr. Grymes, when you provide, and when your colleagues, who are weather persons, provide information about temperatures in South Louisiana during the summertime, you provide the heat index as well as the temperatures, generally, correct?

BY MR. GRYMES:

Often. Correct.

BY MR. VORA:

And when you say often, you mean more often than not? Is that a fair statement?

BY MR. GRYMES:

I can’t speak for the others on my team, but I would say I probably mention the heat index probably every other weathercast.

BY MR. VORA:

And the reason you provide the heat index every other weathercast is because you believe that it is important [to] your job [of] informing the public as to what they can expect the ambient conditions [to] which they are about to be exposed - in the event they go outside - to be, so that they can go on with their lives in a predictable fashion, correct?

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BY MR. GRYMES:

I provide heat index as a guideline to our viewers for them to make better decisions.

BY MR. VORA:

And it is a guideline that you would expect your viewers to make decisions pursuant to, correct?

BY MR. GRYMES:

I would hope so.

Trial Transcript, Testimony of Jay Grymes, Aug. 6, 2013.

57. The Court notes that reputable meteorology organizations agree that the heat

index is critical to human safety. For example, the NOAA’s heat alert procedures “are

based mainly on Heat Index Values.” See, e.g., Heat: A Major Killer, supra note 37;

Heat, supra note 79.

58. Finally, the Fifth Circuit itself has recognized heat index as a valid measure for

determining the constitutionality of prison conditions. See Gates, 376 F.3d at 334, 336.

59. Thus, the Court is unpersuaded that the heat index - which is calculated based

on the temperature and humidity - is not of critical importance when evaluating the

risk of serious harm to Plaintiffs.

60. In sum, based on the USRM data summarized above, the testimony presented

at trial, and the advisories issued by numerous federal and state agencies, the Court

concludes that Plaintiffs have met their burden of establishing that the conditions of

confinement at Angola’s death row constitute a substantial risk of serious harm to

plaintiffs. The Court’s conclusion is consistent with previous rulings by the Fifth

Circuit. See, e.g., Valigura, 265 F. Appx. at 236 (unpublished) (“requiring an inmate

to remain on his bunk almost twenty-four hours a day for several days in a row in

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temperatures into the nineties and hundreds are allegations that are sufficiently serious to implicate the minimal civilized measure of life’s necessities.”). Accordingly, the Court shall evaluate the second element of Plaintiffs’ Eighth Amendment claim.
b. The Evidence Establishes that Defendants Acted with Deliberate Indifference to the Substantial Risk of Serious Harm to Plaintiffs
61. Prison officials violate the Eighth Amendment when they act with deliberate indifference to a prisoner’s serious medical needs. Estelle, 429 U.S. at 105-106. 62. To establish that a prison official was deliberately indifferent to an inhumane condition of confinement, the plaintiff bears the burden of showing that the official knew of and disregarded an excessive risk to inmate health or safety. 63. “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Gates, 376 F.3d at 332. See also Farmer, 511 U.S. at 837 (the evidence must show that “the official [was] both . . . aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [that] he . . . also [drew] the inference.”); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994) (“[u]nder exceptional circumstances, a prison official’s knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk.”). 64. As established by the Supreme Court in Farmer, it is not necessary for an Eighth Amendment claimant to show that a prison official acted or failed to act due to
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a belief that an inmate would actually be harmed. It is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. 511 U.S. at 842.
1.) The Evidence Establishes that Defendants Had Knowledge of the Substantial Risk of Serious Harm to Plaintiffs
65. Considering the uncontroverted USRM data summarized above, Plaintiffs’ ages, Plaintiffs’ underlying medical conditions, and Plaintiffs’ medications, the Court concludes that Defendants’ knowledge of the substantial risk of harm may be inferred by the obviousness of the risk to Plaintiffs.92 66. In the alternative, the Court concludes that Defendants’ knowledge of the substantial risk of harm to Plaintiffs may be inferred from circumstantial evidence presented at trial. 67. In cases asserting deliberate indifference by prison officials where there is excessive heat, the Fifth Circuit has found deliberate indifference where prison officials ignored complaints “of heat stroke or some other heat-related illness.” Gates, 376 F.3d at 339; Blackmon, 484 F. Appx. at 872-73 (evidence was sufficient to allow a jury to conclude that prison officials were deliberately indifferent to significant risks to prisoner’s health where prisoner “filed numerous grievances complaining about the heat, its effect on his health, and prison officials’ failure to address his concerns”).
92 Indeed, there is nothing in the record to suggest that the temperature, humidity, and heat index data collected, analyzed, and disseminated by USRM from July 15 - August 5, 2013 was higher than the average temperature, humidity, and heat index normally experienced during the summer months in south Louisiana. Further, the record establishes that Defendants have been in possession of Plaintiff’s medical records throughout the duration of their incarceration at death row.
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68. Here, it is uncontroverted that Plaintiffs submitted multiple ARPs to
Defendants complaining of the excessive heat conditions, prior to filing the instant
litigation.
69. During the trial, the Court admitted into evidence multiple ARPs submitted by
Plaintiffs to Defendants between July 24 and October 17, 2012. The Court also
admitted into evidence Defendants’ responses to Plaintiffs’ ARPs, in which Defendants
acknowledged Plaintiffs’ claims that it is “extremely hot on Death Row” and that they
are “more susceptible to heat” because of their underlying medical conditions and
medications, and denied Plaintiffs’ requests for relief.93
93 Defendants’ receipt of and response to Plaintiffs’ ARPs was also summarized in the parties’ Statement of Undisputed Facts (Doc. 53-1), which states:
Plaintiff Ball submitted a Request for Administrative Remedy (“ARP”) on July 28, 2012 to Warden Cain, describing among other things the excessive heat conditions, the adverse symptoms he was experiencing due to the heat, his inability to alleviate the conditions, and his medical diagnoses and medications. Plaintiff Elzie Ball requested that the prison accommodate his illness by providing a safer environment. Angola, through Warden Norwood, issued a Response denying the ARP on October 12, 2012. Plaintiff Ball appealed Warden Norwood’s response on October 17, 2012. The DOC denied the appeal December 14, 2012. Plaintiff Ball’s grievance process was thereby exhausted.
Plaintiff Code submitted Request for Administrative Remedy (“ARP”) on July 24, 2012, describing the excessive heat conditions, the adverse symptoms he was experiencing due to the heat, his inability to alleviate the conditions, and his medical diagnoses and medications. Plaintiff Nathaniel Code requested that the prison accommodate his illness by providing a safer environment. Angola, through Warden Norwood, issued a Response denying the ARP on September 5, 2012. Plaintiff Code appealed Warden Norwood’s response on September 13, 2012, reasserting his grievances and outlining why LSP’s First Step Response was inadequate. The DOC denied the appeal on November 21, 2012. Plaintiff Code’s grievance process was thereby exhausted.
Plaintiff Magee submitted a Request for Administrative Remedy (“ARP”) on August 28, 2012, describing the excessive heat conditions, the adverse symptoms he was experiencing due to the heat, his inability to alleviate the conditions, and his medical diagnoses and medications. Plaintiff James Magee requested that the prison accommodate his illness by providing a safer environment. Angola, through Warden Norwood, issued a Response denying the ARP on November 6, 2012. Plaintiff Magee appealed Warden Norwood’s response on November 7, 2012. The DOC denied the appeal
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70. During the trial, Defendant Norwood, who has been the Assistant Warden

responsible for the death row tiers since February 2011, testified that she received

thirteen ARPs related to the heat conditions in the death row tiers:

BY MR. VORA:

You received the ARP request that was filed by Mr. Elzie Ball, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And you received the ARP request that was filed by Mr. Code?

BY MS. NORWOOD: Yes.

BY MR. VORA:

You received the ARP request that was filed by Mr. Magee?

BY MS. NORWOOD: Yes.

BY MR. VORA:

You received all of those ARP requests?

BY MS. NORWOOD: I did, among others.

BY MR. VORA:

And you received - the ARP requests that I’m referring to, Mr. Code, Mr. Ball, Mr. Magee, were related to what they described as extreme heat or hot conditions. Is that accurate?

BY MS. NORWOOD: Yes.

. . .

BY MR. VORA:

You received many, many ARPs being filed since February, end of February, 2011, correct?

on January 3, 2013. Plaintiff Magee’s grievance process was thereby exhausted.
(Doc. 53-1, pp. 2-3.) Despite these undisputed facts, Norwood later attempted to characterize Plaintiffs’ ARPs as nothing more than Plaintiffs’ complaints that “they were hot and [that] they wanted air conditioning.” Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.
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BY MS. NORWOOD:

Actually, no. I have received the most on this subject.

BY MR. VORA:

And when you say this subject, you mean -

BY MS. NORWOOD: The heat.

BY MR. VORA:

- with respect to the heat, correct?

BY MS. NORWOOD: Right.

BY MR. VORA:

And with respect to those, how many would you approximate there would be, how many requests?

BY MS. NORWOOD: Thirteen.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

71. Norwood also testified that she talked with Plaintiffs Ball and Code regarding

the heat conditions on multiple occasions:

BY MR. VORA:

And did you speak to Mr. Ball and Mr. Code prior to the filing of the ARP?

BY MS. NORWOOD: I did.

BY MR. VORA:

Did you speak to them after they filed the ARP?

BY MS. NORWOOD: I did.

BY MR. VORA:

Did you speak to them after they filed this lawsuit?

BY MS. NORWOOD: Yes, sir.

72. During the trial, Defendant Cain, who oversees the entire penitentiary,

including the death row facility94, testified regarding Defendants’ knowledge of a

94 Cain testified as follows: BY MR. VORA:

How long have you been the Warden at Angola?

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substantial risk of serious harm to Plaintiffs.

73. For example, according to Cain, correctional officers assigned to the death row

facility “closely monitor” the temperature in the death row tiers and record such

temperatures in tier log books.

BY MR. VORA:

You state here in this letter that we do understand their concern and would like to assure you that the temperature, and all the main areas, is closely monitored. Do you see that, sir?

BY MR. CAIN:

Yes.

BY MR. VORA:

And when you say ‘closely monitored’ you mean in the logs that are required by the correctional officers to be filled out with the air temperatures at various times throughout the day. Is that correct?

BY MR. CAIN:

Eighteen and a half years.

BY MR. VORA:

And during the eighteen and a half years that you have been Warden at Angola, you have been the top official at Angola?

BY MR. CAIN:

Yes.

BY MR. VORA:

You would also, therefore, exercise control and responsibility over what happens at death row, correct?

BY MR. CAIN:

Yes.

According to Cain, he also is responsible for enforcing policies and/or regulations related to inmates who have been prescribed medications that increase their risk of developing heat-related illnesses:

BY MR. VORA:

Sir, my question is, you are responsible for enforcing any policies that would have to deal with medications that could create the risk of an adverse effect to somebody’s health, an inmate’s health, as a result of rising temperatures - is that a fair statement?

BY MR. CAIN:

Yes.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

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BY MR. CAIN:

Yes.

BY MR. VORA:

Those logs are monitored by individuals who are to monitor them to ensure that the temperatures do not reach unacceptable levels, correct?

BY MR. CAIN:

Yes, correctional officers.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

74. Defendant Norwood also testified as to Defendants’ constant monitoring of the

internal temperature95:

BY MR. VORA:

. . . Correctional officers then, pursuant to policies that are in place on the death row tiers, are required to record temperatures in log books. Is that accurate?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And that temperature is supposed to be recorded indoors as well as outdoors, correct?

BY MS. NORWOOD: Indoors daily.

BY MR. VORA:

It is recorded indoors daily, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

It is recorded multiple times per day, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

It is recorded more or less every two hours indoors, correct?

95 Norwood further testified that the mercury in-glass thermometers in each of the death row tiers are “hard to read.” However, both she and Cain testified that Defendants have not attempted to replace the thermometers nor taken any action to make the current in-mercury thermometers easier to read. Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013; Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.
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BY MS. NORWOOD: Yes.

BY MR. VORA:

Its your responsibility to ensure that the correctional officers properly record that temperature?

BY MS. NORWOOD: Ultimately, yes.

BY MR. VORA:

And it’s your responsibility not just that they record it, but that they record it accurately, correct?

BY MS. NORWOOD: Ultimately, yes.

Trial Transcript, Testimony of Angelia Norwood, Aug. 5, 2013.

75. Defendant Cain further testified that he visits the death row facility regularly

and is aware of the heat conditions in the tiers:

BY MR. CAIN:

. . . I go to death row regularly. So I walk in there. So I know what it feels and how hot it is and inmates talk to me. So, evidently I didn’t have anyone talk to me about being too hot.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

76. Despite Cain’s contention that Plaintiffs did not verbally complain about the

heat conditions, the Court concludes that Defendants had knowledge of the heat

conditions in the death row tiers, and thus, the substantial risk of serious harm to

Plaintiffs. Considering the uncontroverted USRM data, Plaintiffs’ ages, Plaintiffs’

underlying medical conditions, and Plaintiffs’ medications, the Court concludes that

Defendants’ knowledge of the substantial risk of harm may be inferred by the

obviousness of the risk to Plaintiffs. In the alternative, based on the evidence that: (1)

Plaintiffs submitted multiple APRs complaining of the excessive heat conditions to

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Defendants, prior to filing the instant litigation; (2) Defendants “closely monitor” the

temperature in each of the death row tiers and record such temperatures in tier log

books; and (3) Defendants Cain and Norwood walk the death row tiers “regularly,” the

Court concludes that Defendants’ knowledge of the substantial risk of harm to

Plaintiffs may be inferred.

2.) The Evidence Establishes that Defendants Disregarded the Substantial Risk of Serious Harm to Plaintiffs

77. Despite “know[ing] what it feels and how hot it is,” Cain testified that he did not

take any actions to reduce the heat conditions in the death row tiers, prior to the data

collection period.96

78. Indeed, according to Cain, he often “thought” of ways to reduce the heat in the

death row tiers, yet failed to take any action, even after the instant litigation was filed:

BY MR. VORA:

Warden Cain, between the June date on which this complaint was filed to July 2nd, did you ever consider taking any remedial measures to address the issue of heat on the death row tiers?

BY MR. CAIN:

I don’t recall the specific dates and times, but we always have thought and tried to figure any way to have the ice on the tiers, any way and to add extra fans. We’ve got a building with no fans. Inmates know that. Anything we can come up with and make that building cooler or any other building at Angola, we would do it. And we will - it was always on our mind how to overcome the heat. Because their comfort means less problems for me. I’m sure

96 Defendants’ attempts to “lower the temperatures” in the death row tiers during the data collection period will be addressed in a separate order by this Court.
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during that period of time, as all of the time almost, we’re thinking about how to get this place cooler.

BY MR. VORA:

Did you actually do anything to try to make the death row tiers cooler between the June time frame that the complaint was filed and July 2nd?

BY MR. CAIN:

I don’t know that I did or didn’t. I know that we made a mistake after the Judge gave the [July 2nd] order. Is that what you’re talking about?

BY MR. VORA:

No, sir. I’m trying to refer to the time before the order was issued but after the complaint, in which the lawsuit against you was filed. During that time frame, did you take any actions in order to remedy the heat that the inmates were complaining about in this case?

BY MR. CAIN:

I don’t think so. I think we were already giving the ice. We thought about doing buckets at some point in there. So, I don’t know exactly when. So, I can’t answer accurately, because I don’t remember in your dates. But we were thinking about ice and thinking about other things all through that period of time. Specifically, I don’t want to say I did when I don’t know for sure that I did exactly during those dates.

BY MR. VORA:

Warden Cain, you never provided a[n] [ice] bucket that you referred to in your previous answer to any of the inmates on the death row tiers at any point in time since this lawsuit was filed against you, correct?

BY MR. CAIN:

No, we haven’t done that yet. I thought about it.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

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79. Cain conceded, however, that once the Court-ordered data collection period

began, he took action to attempt to reduce the temperature in tiers C and G, the tiers

with the highest recorded temperatures and heat indices:

BY MR. VORA:

But you ordered the awnings to be procured, correct?

BY MR. CAIN:

Well, this is a homemade thing. Where we had wood in the warehouse and the 2 x 4’s, and we used, I think, mattress material that we would normally make mattresses with. And this was just a really thrown together thing, just to see if it would shade. We were trying to shade the windows to see what would happen. To see if the temperature would fall.

. . .

BY MR. VORA:

You had tried other measures in order to try to lower the temperature and address the issue of heat that had been raised by Mr. Ball, Mr. Magee, and Mr. Code, right?

BY MR. CAIN:

I haven’t tried other measures. I’ve only given them ice.

BY MR. VORA:

You never tried to do - you never tried to do something with soaker hoses?

BY MR. CAIN:

I had never before, but I did during this [data collection period], but it didn’t work.

BY MR. VORA:

And during this time, when did you try to use soaker hoses?

BY MR. CAIN:

At the same time that we were putting the awnings up. I would think the next day or two. And there was, I mean, that didn’t work at all. It was not, it was never up, really. It was up, but the water all ran out as soon as you put it on. We didn’t have enough power.

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BY MR. VORA: BY MR. CAIN: BY MR. VORA: BY MR. CAIN:
BY MR. VORA: BY MR. CAIN: BY MR. VORA:

It was a half inch of line going into a threequarter inch hose. Who gave the order to install the soaker hoses and try to use them? Me. . . . Outside of misting, using soaker hoses and awnings, have you ever attempted to do anything else in order to address the issues that Mr. Ball, Mr. Code, and Mr. Magee have raised with respect to what they consider to be prolonged exposure to heat, sir? I’ve just ensured - the only thing I would do is ensure that the system put in the building was working, that the belts were there, that they kept it operating, and it didn’t, it didn’t falter. Because it did a time or two. And so we had to keep the belt on there because the belts would break off. And they turned the fans that worked in the duct work that make air moves through the, through the little vents that go into the cells. So yes, keep it, keep it up. Maintain it well. What we do have, make it work the best we can. And add the additional fans. Did you ever consider doing anything that would not have manipulated the USRM data, that would have provided some relief for Mr. Ball, Mr. Code, or Mr. Magee? I just told you what I did. That’s all I’ve ever done. You had considered previously, though, providing them with larger buckets in which they could store ice, correct?
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BY MR. CAIN:

We’ve never given them buckets. We thought about that, about using the soft-type ice chests.

BY MR. VORA:

But you never provided the soft-type ice chest that you had considered to Mr. Ball, Mr. Code, or Mr. Magee. Is that correct?

BY MR. CAIN:

Correct.

BY MR. VORA:

To this day, you do not have a soft-type ice chest, correct?

BY MR. CAIN:

No. We don’t have one.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

80. While the Court questions Cain’s motivation for taking such actions for the first

time during the Court ordered data collection period, it defies logic to conclude that

Cain would have taken such actions if he did not have knowledge of the heat conditions

in the death row tiers. Indeed, prior to the filing of the instant litigation, Cain

acknowledged the heat conditions in the death row tiers and the need for remedial

action. See Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013 (“Anything

we can come up with and make that building cooler or any other building at Angola,

we would do it. And we will - it was always on our mind how to overcome the heat.”).

Nevertheless, Cain failed to take any remedial action until USRM began collecting,

analyzing, and disseminating the alarming temperature, humidity, and heat index

data.

81. Further, during the trial, Cain testified about the importance of even one-half

of a degree decrease in the death row tiers:

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BY MR. CAIN:

And if it were a half degree, we would know it. And the half a degree is a half a degree. And we would put the awnings up, if we could save a half a degree.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

82. Additionally, the evidence establishes that Defendants failed to abide by their

own policies and regulations when they failed to add Plaintiff Magee, who is on

psychotropic medication, to Angola’s “Heat Precautions List.”97

BY MR. VORA:

. . . Do you recognize this document as being an email that you sent to the death row supervisors on July 24, 2013 at 9:19 a.m.? Do you recognize that?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And that is an email that relates to the heat precaution list for the week of July 22nd, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

This goes out to all of the death row supervisors because there are [inmates who] belong on the heat precautions list that [the supervisors are] supposed to monitor, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And that is pursuant to a prison policy and applies to the death row tiers in which [inmates] are to be monitored because of their risk of heat-related illness. Is that correct?

BY MS. NORWOOD: Yes.

97 During the trial, the Court admitted into evidence Louisiana Department of Public Safety and Corrections Health Care Policy No. HC-45 and Louisiana State Penitentiary Department Regulation No. B-06-001. It is undisputed that both the policy and regulation require Defendants to, inter alia, identify, and monitor “offenders prescribed psychotropic medication.”
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BY MR. VORA: BY MS. NORWOOD: BY MR. VORA: BY MS. NORWOOD: BY MR. VORA: BY MS. NORWOOD: BY MR. VORA: BY MS. NORWOOD: BY MR. VORA:
BY MS. NORWOOD:
BY MR. VORA:
BY MS. NORWOOD:

. . . You were the recipient of this email, correct? Yes. This was July 23, 2013, correct? Yes. You did not ask for Mr. Ball, Mr. Magee, or Mr. Code to be put on a list, or this list, correct? No. Meaning that you did not ask at any time? That is your statement? That’s true. . . . Warden Norwood, there is, in fact, a list of offenders who are placed on a list because they are perceived to be at risk of heat-related illness, correct? If they are on any type of psychotropic medication, yes. . . . This list was distributed then weekly to you, who then in turn provide[d] it to the relevant death row supervisors to ensure [that] the policies of the prison [ ], with respect to the death row tiers [and] with respect to monitoring, [were] properly followed and enforced, is that correct? Yes.

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BY MR. VORA:

And this is an example of the list that you did not put Mr. Ball, Mr. Magee, or Mr. Code on, despite the fact that they had complained of their concern about being affected by the heat that they had been exposed to, correct?

BY MS. NORWOOD:

They are not on any psychotropic, except for Mr. Magee.98

. . .

BY MR. VORA:

Warden Norwood, the lists that get sent out every week of the [inmates] who are at risk for heat-related illness, with respect to that list that goes out every week, at no time did you ask that Mr. Code, Mr. Magee, or Mr. Ball be placed on that list, is that a true statement?

BY MS. NORWOOD: Yes.

Indeed, Defendants failed to introduce any evidence that Magee is on, or was ever

placed on, the “Heat Precautions List.”

83. In sum, the Court concludes that Defendants disregarded the substantial risk

of serious harm to Plaintiffs’ health and safety. Accordingly, the Court concludes that

Plaintiffs have met their burden of proving that Defendants acted with deliberate

indifference. Thus, the Court concludes that the conditions of confinement at Angola’s

death row do not meet constitutional standards, and Defendants have violated the

98 Defendants’ staff physician, Dr. Macmurdo, also acknowledged this fact:

BY MS. MONTAGNES:

Do you consider Remeron® to be a psychotropic drug?

BY DR. MACMURDO:

Yes.

BY MS. MONTAGNES:

And Mr. Magee is on Remeron®, isn’t he?

BY DR. MACMURDO:

Yes.

Trial Transcript, Testimony of Dr. Hal David Macmurdo, Aug. 7, 2013.

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Eighth Amendment.99 84. This conclusion is consistent with determinations made by other District Courts addressing similar prison conditions, and affirmed by various Courts of Appeals. 85. For example, in Russell v. Johnson, No. 02-261, 2003 WL 22208029 (N.D. Miss. May 21, 2003) a magistrate judge in the Northern District of Mississippi determined that prison officials at the Mississippi State Penitentiary (“Parchman”) violated death row inmates’ Eighth Amendment rights by, among other things, forcing them to endure summer cell temperatures exceeding a heat index of 90 degrees without access to “extra showers, ice water, or fans” where the ventilation in death row was otherwise “inadequate to afford prisoners a minimal level of comfort during the summer months.” Id. at *2, *5, aff’d in part, vacated in part sub nom. by Gates, 376 F.3d 323. After a bench trial, the magistrate judge found:
The probability of heat-related illness is extreme [on death row], and is dramatically more so for mentally ill inmates who often do not take appropriate behavioral steps to deal with the heat. Also, the medications commonly given to treat various medical problems interfere with the body’s ability to maintain a normal temperature. Id. at *2. Based on these findings of fact, the court determined that the inmates’ cell conditions were unconstitutional, and ordered the defendants to “insure that each cell is equipped with a fan, that ice water is available to each inmate, and that each inmate may take one shower during each day when the heat index is 90 degrees or above.” Id. at *5. As an alternative, the magistrate judge ordered that “the defendants may
99 The Court notes that the fact that Angola has attained accreditation from the American Correctional Association (ACA) does not moot the issues in this matter, nor does it automatically ensure that the conditions of confinement at death row meet constitutional standards. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 190 (2002).
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provide fans, ice water, and daily showers during the months of May through
September.”100 Id.
86. On appeal, the Fifth Circuit agreed that the magistrate judge’s findings were
sufficient to support the injunction, to the extent that it applied to Parchman’s death
row unit.101 Gates, 376 F.3d at 340. In particular, the Fifth Circuit noted that the
magistrate judge’s findings supported a determination that “the probability of heat-
related illness [was] extreme” on Parchman’s death row and, therefore, the heat index
“present[ed] a substantial risk of serious harm to the inmates.” See id. Thus, “based
on the open and obvious nature of these conditions and the evidence that inmates had
complained of symptoms of heat-related illness,” the Fifth Circuit affirmed “the trial
court’s finding regarding MDOC’s deliberate indifference” and held that the injunction
was “justified by an Eighth Amendment violation.” Id. See also Valigura, 265 F. Appx.
at 235-36 (affirming the district court’s denial of summary judgment to prison officials
at Texas’s Beeville State Prison on an inmate’s prison conditions claim where poor
ventilation in the bunk area resulted in “temperatures above the eighties and into the
100 In contrast, here, Plaintiffs’ cells are not equipped with fans. Rather, each housing tier includes nonoscillating fans, which are mounted approximately nine feet away from the inmate cells. Each fan is shared by two cells. However, during the Court’s site visit, the undersigned observed that the fans did not provide equal amounts of air flow to each cell, nor did the fans provide a detectable cooling effect or relief from the heat conditions in the tier. Further, it is uncontroverted that Plaintiffs do not have direct access to ice during the twenty-three hours per day that they are confined to their cells. Rather, Plaintiffs are largely dependant on other death row inmates to distribute ice to them during that inmate’s tier time. Further, while the Court did not attempt to measure the temperature of the water from the in-cell faucets, the undersigned noted that the cold water was lukewarm to the touch. Additionally, it is uncontroverted that Plaintiffs are permitted only one shower per day, and that the shower water temperature is maintained between 100 and 120 degrees. 101 The Fifth Circuit invalidated the injunction to the extent that it purported to apply to cell blocks beyond Parchman’s death row because “the class represented by [the plaintiff] consists entirely of Parchman’s Death Row prisoners.” Gates, 376 F.3d at 339.
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hundreds,” because temperatures consistently in the nineties without remedial measures, such as fans, ice water, and showers, sufficiently increase the probability of death and serious illness so as to violate the Eighth Amendment) (citing Gates, 376 F.3d at 339-40). 87. The district court for the Western District of Wisconsin addressed a similar situation in Jones‘El v. Berge, No. 00-421, 2003 WL 23109724 (W.D. Wis. Nov. 26, 2003), aff’d Jones‘El, 374 F.3d at 545. After prisoners confined at the Supermax Correctional Institution in Boscobel, Wisconsin (“Supermax”) sued prison officials alleging unconstitutional conditions of confinement based, in part, on having to endure “extreme” summer temperatures in their cells, Jones‘El, 374 F.3d at 542-43, the defendants entered into a settlement agreement requiring them to “investigate and implement as practical a means of cooling the cells during summer heat waves.” Jones’El, 2003 WL 23109724, at *1. Later, when the defendants failed “to cool the cells to temperatures between 80 degrees and 84 during the hot months,” the prisoners sought an enforcement order from the district court. See id. Noting the defendants’ admission that “air conditioning [was] the only viable way to cool the cells to the required temperatures,” id., the district court ordered the defendants “to take steps immediately to air condition the cells.” Id. at *2. 88. On appeal, the Seventh Circuit affirmed the district court’s enforcement order, and rejected the prison officials’ arguments that the order failed under the Prison Litigation Reform Act because it was not narrowly drawn, and that installing air conditioning at Supermax was otherwise impractical and/or would cause undue strife
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between prisoners and guards. Jones‘El, 374 F.3d at 545. 89. Likewise, in Graves v. Arpaio, 623 F.3d 1043 (9th Cir. 2010), the Ninth Circuit affirmed a district court order requiring the Sheriff of Maricopa County, Arizona to “provide pretrial detainees taking psychotropic medications with housing in which the temperature does not exceed 85° F.” Id. at 1045. The district court’s order came in the wake of ongoing litigation in which pretrial detainees argued that “harsh conditions of confinement at [county] jails,” which included “dangerously high [cell] temperatures,” violated their constitutional rights. Id. at 1046. After a hearing on the defendants’ Motion to Terminate a previous order requiring remedial relief, see id. at 1046, “[t]he district court found that air temperatures above 85° F greatly increase the risk of heat-related illnesses for individuals who take psychotropic medications and found further that pretrial detainees taking psychotropic medications [were] held in areas [of the jails] where the temperature . . . exceeded 85° F.” Id. at 1048-49. Based on these findings, “[t]he district court ordered Sheriff Arpaio to house all detainees taking psychotropic medications in temperatures that do not exceed 85° F.” Id. at 1049. 90. On appeal, the Ninth Circuit determined that “the district court reasonably concluded that temperatures in excess of 85° F are dangerous for pretrial detainees taking psychotropic medications,” and agreed with its legal conclusion that the “Eighth Amendment requires that the temperature of the areas in which pre-trial detainees are held or housed does not threaten their health or safety.” Id. Thus, “the Eighth Amendment prohibits housing such pretrial detainees in areas where the temperature
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exceeds 85° F.” 91. Finally, this Court’s conclusion that the conditions in Angola’s death row tiers are unconstitutional is not inconsistent with the Eleventh Circuit’s reasoning in Chandler v. Crosby. In that case, death row inmates at Florida’s Union Correctional Institution (“UCI”) also alleged unconstitutional conditions of confinement based on “the high temperatures in their cells during the summer months.” Chandler, 379 F.3d at 1282. After a bench trial, the district court rejected the inmates’ claims, determining that they failed to establish the objective prong for proving an Eighth Amendment violation.102 See id. at 1297 n.27. This determination was based on evidence showing that during the period in question: (1) the typical temperature in the inmates’ cells was “between approximately eighty degrees at night to approximately eighty-five or eighty-six degrees during the day,” id. at 1285 (quotation marks omitted); (2) the inmates’ experienced temperatures over ninety degrees only nine percent of the time and never experienced temperatures exceeding 100 degrees, id. (quotation marks omitted); and (3) the ventilation system on UCI’s death row exceeded industry standards for air circulation and was working properly, see id. at 1285-86 n.14. 92. On appeal, the Eleventh Circuit affirmed the district court’s ruling. Before discussing the evidence, the Court clarified three points of law: “[f]irst, the Eighth Amendment applies to prisoner claims of inadequate cooling and ventilation. Cooling and ventilation are distinct prison conditions, and a prisoner may state an Eighth
102 The district court also determined that the inmates failed to satisfy the subjective prong. Chandler, 379 F.3d at 1297 n.27.
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Amendment claim by alleging a deficiency as to either condition in isolation or both in combination,” id. at 1294; “[s]econd, the Eighth Amendment is concerned with both the ‘severity’ and the ‘duration’ of the prisoner’s exposure to inadequate cooling and ventilation,” id. at 1295; and “[t]hird, a prisoner’s mere discomfort, without more, does not offend the Eighth Amendment,” id. However, despite acknowledging that under the right circumstances an excessive heat claim could make out an Eighth Amendment violation, the Eleventh Circuit agreed with the district court that the inmates “failed to meet their burden under the objective component” of the test. Id. at 1297. First, the summertime heat, averaging “between approximately eighty degrees at night to approximately eighty-five or eighty-six degrees during the day,” was simply “not unconstitutionally excessive.” Id. “Second, [UCI was] equipped with a ventilation system that effectively manage[d] air circulation and humidity.” Id. at 1298. Finally, “apart from the ventilation system, numerous conditions at [UCI] alleviate[d] rather than exacerbate[d] the heat,” including that “[t]he cells [were] not exposed to any direct sunlight”; the inmates were allowed to wear “only shorts in the summer months”; every cell had a sink with “cold running water, and every inmate possesse[d] a drinking cup”; the inmates were not compelled to engage in strenuous activity; and, finally, the inmates had “limited opportunities to gain relief in air-conditioned areas, e.g., during visitation time.” 93. As discussed, the facts in the instant matter are materially different than the facts addressed by the district court and the Eleventh Circuit in Chandler. First, and most obvious, the temperatures, humidity, and heat index endured by Plaintiffs here
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are substantially higher than those at issue in Chandler. Second, it is uncontroverted

that Plaintiff Code is subjected to direct sunlight through the window across from his

cell. Third, whereas the prison officials in Chandler produced extensive evidence

regarding the ventilation system at UCI and its functional capacity, see id. at 1283-85,

the record here is void of any evidence regarding the instant ventilation system’s

ability to lower the temperature, humidity, and heat index in the tiers. Rather,

Plaintiffs produced testimonial evidence from David Garon103, which was

uncontroverted, that the ventilation system at Angola is incapable of cooling or

dehumidifying the death row tiers:

BY MS. COMPA:

. . . Can you describe the system that’s in place in the death row tiers?

BY MR. GARON:

It’s a - there’s a heating only system for winter conditions. And there’s an exhaust system for ventilation. That’s basically all there is.

BY MS. COMPA:

And were there -

BY MR. GARON:

There’s some prop fans mounted on the walls also.

BY MS. COMPA:

And with respect to the exhaust system that you just mentioned, what is that designed to do?

BY MR. GARON:

Its designed to exhaust air from the facility and its toilets and each cell. And there’s - so there’s an exhaust system for the cell block, each individual cell. There’s exhaust fans to take care of that. And there is a separate exhaust system for the showers, basically just

103 The parties stipulated that Garon is an expert in the field of testing and balancing, who tests, adjusts, and analyzes mechanical heating, ventilation, and air conditioning systems.
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to remove odors and provide some ventilation.

BY MS. COMPA:

And what - what is it designed to do, if I can ask it that way? What are the limitations of the serta system?

BY MR. GARON:

Its just to remove odors and ventilate the cell.

BY MS. COMPA:

And is [the ventilation system] designed to cool or dehumidify the air in any way?

BY MR. GARON:

No. You can’t dehumidify with exhaust.

Trial Transcript, Testimony of David Garon, Aug. 5, 2013. Garon further testified that

Angola’s “natural” ventilation system, which is not recommended in hot, humid

climates, does not include features that are essential to a sound natural ventilation

system:

BY MS. COMPA:

Is building a building in south Louisiana with natural ventilation typical for this region?

BY MR. GARON:

I have never seen a naturally ventilated building that didn’t have mechanical cooling.

BY MS. COMPA:

Have you seen a naturally ventilated building that did have mechanical cooling?

BY MR. GARON:

Yes.

. . .

The exhaust system would qualify under naturally ventilated. As long as it doesn’t have the mechanical cooling, it will qualify as naturally ventilated.

. . .

BY MS. COMPA:

Does the death row building, based on your inspection of the premises, include features

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that are considered part of a sound natural ventilation system?

BY MR. GARON:

No.

BY MS. COMPA:

And what - what are some features that might describe such a system that are lacking in death row?

BY MR. GARON:

As I described before, usually you would want to have cross - some sort of cross ventilation. Windows on both sides. Orientation of the building geographically, and the geometry of the building. . . .

Trial Transcript, Testimony of David Garon, Aug. 5, 2013. Thus, according to the

uncontroverted testimony of Plaintiffs’ expert, a building designed and built to house

human beings for twenty-four hours per day should have included a mechanical cooling

system or a cross-ventilation system at the very least. The death row tiers have neither.

Fourth, whereas the UCI inmates each had sinks with cold running water in their

cells, the uncontroverted evidence here is that Plaintiffs do not have unfettered access

to ice. Further, as noted above, during the Court’s site visit, the undersigned noted

that the “cold” water was lukewarm to the touch. Fifth, it is uncontroverted that

Plaintiffs’ opportunities to gain relief in air-conditioned areas is limited to once every

few months.

94. Additionally, the medical records and uncontroverted testimonial evidence

establish that, due to their underlying medical conditions and medications, which

interfere with their ability to maintain a normal temperature, the probability of

Plaintiffs developing heat-related illness in such extreme heat conditions is high.

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95. As noted above, “the Supreme Court has made clear that the standard against which a court measures prison conditions are ‘the evolving standards of decency that mark the progress of a maturing society,’ and not the standards in effect during the time of the drafting of the Eighth Amendment.” Gates, 376 F.3d at 332-33 (quoting Estelle, 429 U.S. at 102) (“The [Eighth] Amendment embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency’. . . against which we must evaluate penal measures.”) (citations omitted). Given the overwhelming evidence in the record and our nations’ current standards of decency, it cannot be said that the conditions of confinement in Angola’s death row facility pass constitutional muster. 96. In sum, the Court concludes that the conditions of confinement at Angola’s death row constitute cruel and unusual punishment, in violation of the Eighth Amendment.
B. Title II of the Americans with Disabilities Act, the Americans with Disabilities Act Amendment Act, and Section 504 of the Rehabilitation Act of 1973
97. Plaintiffs also allege that Defendants have violated their rights under the ADA, as modified by the ADAAA, and the Rehabilitation Act, by “fail[ing] and refus[ing] to reasonably accommodate their disabilities while in custody,” and that this “failure and refusal put them at substantial risk of serious harm” (Doc. 1, ¶ 73.) 98. The ADA and related statutes afford certain rights to incarcerated individuals in state facilities.104

104 Here, Defendants do not contest that they are subject to Title II of the ADA, the ADAA, and Section 504 of the Rehabilitation Act of 1973:

BY MR. VORA:

And you understand that the Louisiana State Penitentiary is subject to the requirements of Title II of the Americans with Disabilities Act. Correct, sir?

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99. Title II of the ADA provides: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 100. A “public entity” includes “any State or local government” and “any department, agency, . . . or other instrumentality of a State.” 42 U.S.C. § 12131(1)(A)-(B). 101. State agencies, including Defendant Louisiana Department of Public Safety and Corrections, can be sued under Title II. See United States v. Georgia, 546 U.S. 151, 159 (2006) (holding that Title II “validly abrogates state sovereign immunity” and

BY MR. CAIN:

Yes.

BY MR. VORA:

. . . You also understand as a recipient of public federal funds, the Louisiana Department of Public Safety and Corrections is subject to Section 504 of the Rehabilitation Act, correct?

BY MR. CAIN:

Yes.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013. Defendants also do not contest that they had an obligation, under the ADA, to provide eligible inmates with an accommodation:

BY MR. VORA:

And your officers, after receiving this training, then would understand that depression is one of the types of mental illnesses, correct?

BY MR. CAIN:

I would hope.

BY MR. VORA:

And you would also hope that the correctional officers working under you at Angola would understand that these types of mental illnesses would be the types of things for which accommodations should be provided pursuant to Title II of the Americans with Disabilities Act, correct?

BY MR. CAIN:

Yes.

Trial Transcript, Testimony of Nathan Burl Cain, Aug. 6, 2013.

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authorizes suits against States, including complaints concerning conditions of confinement in state prisons). 102. Title II of the ADA followed in the footsteps of Section 504 of the Rehabilitation Act, which provides: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” 29 U.S.C. § 794(a). The Fifth Circuit has observed:
The language of Title II generally tracks the language of Section 504 of the Rehabilitation Act of 1973, and Congress’ intent was that Title II extend the protections of the Rehabilitation Act “to cover all programs of state or local governments, regardless of the receipt of federal financial assistance” and that it “work in the same manner as Section 504.” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (quoting H.R. Rep. No. 101-485, pt. III at 49-50 (1990)) (footnotes omitted). 103. Indeed, Title II of the ADA specifically provides that “[t]he remedies, procedures and rights” available under Section 504 shall be the same as those available under Title II. 42 U.S.C. § 12133. Thus, cases interpreting either Title II of the ADA or Section 504 of the Rehabilitation Act are applicable to both. Hainze, 207 F.3d at 799. 104. The tests for determining success under the Rehabilitation Act and Title II of the ADA are substantially similar. To prove a claim under Section 504 of the Rehabilitation Act, a plaintiff must prove: (1) that he is a qualified individual with a disability; (2) that he was excluded from participation in, denied benefits of, or subjected to discrimination under the defendant’s program solely because of his
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disability; and (3) that the program in question receives federal financial assistance. 29 U.S.C. § 794(a). Similarly, to prove discrimination under Title II of the ADA, a plaintiff must show: (1) that he is a qualified individual with a disability; (2) that he has been excluded from participation in, or denied the benefits of the services, programs, or activities of a public entity, or that he was otherwise discriminated against by such entity; and (3) that such exclusion or discrimination was by reason of his disability. 42 U.S.C. § 12132; Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 428 (5th Cir. 1997).
1. Plaintiffs Failed to Introduce Evidence into the Record to Establish that They are Qualified Individuals with Disabilities
105. The ADA and the Rehabilitation Act each define disability to mean “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A); 29 U.S.C. § 705(9)(B) (“The term ‘disability’ means . . . the meaning given it in section 12102 of Title 42.”).105 106. “Major life activities” are “those activities that are of central importance to daily life.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002). 107. The Equal Employment Opportunity Commission’s regulations implementing the ADA provide a non-exhaustive list of “major life activities.” Such activities include, but are not limited to “caring for oneself, performing manual tasks, seeing, hearing,
105 In 2008, the ADA was modified by the ADAAA, Pub. L. No. 110-325, 122 Stat. 3553, which, among other things, clarified that “[t]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter,” 42 U.S.C. § 12102(4)(A), and that “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as . . . medication, [or] medical supplies.” 42 U.S.C. § 12102(4)(E)(i)(I).
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eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.” 29 C.F.R. § 1630.2(i). See also 42 U.S.C. § 12102(2)(A)(1). 108. “[T]o be substantially limited means to be unable to perform a major life activity that the average person in the general population can perform, or to be significantly restricted in the ability to perform it.” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 614 (5th Cir. 2009) (citing 29 C.F.R. § 1630.2(j)). 109. In making that determination, the EEOC has advised that courts consider: “(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” Id. at 614-15 (citing 29 C.F.R. § 1630.2(j)). 110. The evidence in the record establishes that Plaintiffs suffer from several chronic diseases. As previously noted, it is uncontroverted that Plaintiff Ball suffers from uncontrolled blood pressure, hypertension, diabetes, and obesity; Plaintiff Code suffers from hypertension, obesity, and hepatitis; and Plaintiff Magee suffers from hypertension, high cholesterol, and depression. 111. While the Court has no doubt that such diseases may limit one or more of Plaintiffs’ major life activities, the record is void of any evidence to support such a conclusion. 112. Indeed, Plaintiffs failed to introduce evidence into the record to establish that Plaintiffs chronic diseases substantially limit their ability to care for themselves,
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perform manual tasks, walk, see, hear, speak, breath, learn, working, eat, sleep, stand, lift, bend, read, concentrate, think, or communicate. Rather, the evidence introduced by Plaintiffs was limited to how the heat conditions in the death row tiers limit Plaintiffs’ major life activities, and how Plaintiffs’ underlying medical conditions put them at increased risk of developing heat-related illnesses. 113. During the trial and in their submissions to the Court, Plaintiffs described the chronic diseases that each Plaintiff suffers, and the medications that each Plaintiff is required to take. See, e.g., Doc. 53-9, pp. 11-15. However, “[m]erely having an impairment . . . does not make one disabled for purposes of the ADA.” Chevron Phillips Chem. Co., 570 F.3d at 614. Here, Plaintiffs simply failed to introduce evidence that their chronic diseases and/or medications impede their ability to perform major life activities. 114. In their submissions to the Court, Plaintiffs describe themselves as “disabled” and allege that they are “qualified individuals regarded as having physiological impairments that substantially limit one or more of their major life activities.” (Docs. 1, ¶73; 53-9, p. 11.) However, such conclusory statements and/or allegations are insufficient to establish that Plaintiffs have physical or mental impairments that substantially limit one or more major life activities. Nor are such conclusory statements and/or allegations sufficient to establish that Plaintiffs are regarded as having a physical or mental impairment that substantially limits one or more of their life activities. 115. In sum, the Court concludes that Plaintiffs have failed to establish that they are
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qualified individuals with a disability. See Chevron Phillips Chem. Co., 570 F.3d at 614. 116. Absent evidence in the record that Plaintiffs’ underlying medical conditions substantially limit one or more of their life activities, Plaintiffs have failed to establish a prima facie case for discrimination under Title II of the ADA, as modified by the ADAAA, and the Rehabilitation Act. Blanks v. SW Bell Communs., Inc., 310 F.3d 398, 400 (5th Cir. 2002) (“To establish a prima facie case for discrimination under the ADA, a plaintiff must be a qualified individual with a disability.”). Accordingly, Plaintiffs’ claims under the ADA and the Rehabilitation Act must be denied. VII. CONCLUSION
A. Declaratory and Injunctive Relief 1. “According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that he has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citing cases). 2. Here, as discussed at length above, Plaintiffs have met their burden of proving that Defendants have violated, and continue to violate, their Eighth Amendment rights. Undoubtedly, remedies available at law, such as monetary damages, are
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inadequate to compensate Plaintiffs for such injury. To support their argument that the “harm” to Defendants outweighs the injury to Plaintiffs, Defendants introduced testimonial evidence regarding the Louisiana Department of Public Safety and Corrections’ “reduced budget.” See Trial Transcript, Testimony of James M. LeBlanc, Aug. 7, 2013. However, Defendants’ purported financial hardships “can never be an adequate justification for depriving any person of his constitutional rights.” Udey v. Kastner, 805 F.2d 1218, 1220 (5th Cir. 1986). Finally, it is beyond dispute that a permanent injunction against Defendants serves the public interest in that it will enforce the fundamental rights enshrined in the United States Constitution. In sum, the Court concludes that Plaintiffs have met the test and shown “a clear threat of continuing illegality portending immediate harmful consequences irreparable in any other manner.” Posada v. Lamb County, 716 F.2d 1066, 1070 (5th Cir. 1983). Accordingly, the Court concludes that it has a “duty and obligation to fashion effective relief.” Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir. 1974); see also Swann v. Board of Educ., 402 U.S. 1, 15 (1971) (“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”). 3. Because this case concerns conditions of confinement, the Court must abide by the standards set out in the Prison Litigation Reform Act (“PLRA”). The PLRA narrowly limits the relief that a federal court may impose in prisoner suits. See 18 U.S.C. § 3626.
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4. According to the PLRA, injunctive relief “must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least instrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). 5. The PLRA further prohibits a federal court from ordering any prospective relief “unless the court finds that such relief is narrowly 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.” 18 U.S.C. § 3626(a)(1)(A). 6. According to the parties’ Statement of Undisputed Facts: “Plaintiffs have each exhausted their administrative remedy proceedings as required under the Prison Litigation Reform Act[,] 42 U.S.C. § 1997(e) . . .” (Doc. 53-1, p. 3.) See also supra note 93. 7. The Fifth Circuit has held that “[i]ntrusion of federal courts into state agencies should extend no further than necessary to protect federal rights of the parties. An injunction, however, is not necessarily made overbroad by extending benefit[s] or protection to persons other than prevailing parties in the lawsuit - even if it is not a class action - if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Prof’l Assoc. of College Educators v. El Paso County Cmty. College Dist., 730 F.2d 258, 273-274 (5th Cir. Tex. 1984) (citing Meyer v. Brown & Root Const. Co., 661 F.2d 369, 374 (5th Cir.1981)); accord Gregory v. Litton Systems, Inc., 472 F.2d 631, 633-34 (9th Cir.1972).
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8. Here, it is uncontested that Defendants may move any death row inmate to a different tier and/or cell at any time. Accordingly, the Court finds that a remedy aimed at ameliorating the heat conditions throughout the death row facility is necessary to adequately vindicate Plaintiffs’ rights, and is not overbroad. 9. Having found that the conditions of confinement at Angola’s death row constitute cruel and unusual punishment, in violation of the Eighth Amendment, the Court grants Plaintiffs request for declaratory and injunctive relief, and directs the following immediate remedial actions: 10. Defendants are hereby ordered to immediately develop a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit. 11. Defendants shall submit their plan to the Court no later than February 17, 2014 at 5:00 p.m. 12. Defendants’ plan shall include a step-by-step description as to how Defendants will: (1) immediately lower and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit; (2) maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit from April 1 through October 31; (3) monitor, record, and report the temperature, humidity, and heat index in each of the death row tiers every two hours on a daily basis from April 1 through October 31; (4) provide Plaintiffs, and other death row inmates who are at risk of developing heatrelated illnesses, with (a) at least one cold shower per day; (b) direct access to clean, uncontaminated ice and/or cold drinking water during their “tier time” and the twenty-
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three hours in which the inmates are confined to their cell; and (c) any and all relief that it is necessary to comply with this Court’s order and the prevailing constitutional standards. 13. Defendants are advised that financial considerations will not be considered a legitimate reason for Defendants’ failure to comply with this Court’s order. As noted above, “inadequate resources can never be an adequate justification for depriving any person of his constitutional rights.” Udey, 805 F.2d at 1220; Smith v. Sullivan, 553 F.2d 373, 378 (5th Cir. 1977) (rejecting the defendants’ argument that “lack of funds to implement the trial court’s order” justified the defendants’ failure to remedy ongoing constitutional violations); Gates v. Collier, 501 F.2d 1291, 1319 (5th Cir. 1972) (“Where state institutions have been operating under unconstitutional conditions and practices, the defense[ ] of fund shortage . . . ha[s] been rejected by the federal courts.”). 14. Defendants are further ordered to comply with Louisiana Department of Public Safety and Corrections Health Care Policy No. HC-45 and Louisiana State Penitentiary Department Regulation No. B-06-001 and immediately add Plaintiff James Magee to Angola’s “Heat Precautions List.” 15. Plaintiffs shall file a response to Defendants’ proposed plan no later than March 10, 2014 at 5:00 p.m. 16. Given Defendants’ deliberate indifference to the substantial risk of harm to Plaintiffs, and Defendants’ actions throughout the data collection period, the Court will retain jurisdiction and monitor Defendants’ implementation of the plan. Accordingly, the Court shall also appoint a Special Master to oversee Defendants’ implementation
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of the plan, and report on Defendants’ progress on a weekly basis. Fed.R.Civ.P. 53. Defendants shall bear all costs associated with the duties of the Special Master. 17. Plaintiffs and Defendants shall jointly or separately recommend candidates for appointment as Special Master no later than March 10, 2014 at 5:00 p.m. The parties’ recommendations shall be filed into the record of this matter and shall set out the qualifications of the persons so recommended. 18. Prior to the trial on the merits, the United States Department of Justice submitted a Statement of Interest of the United States (Doc. 64), advising the Court as to the additional relief available to Plaintiffs. Accordingly, Plaintiffs and Defendants shall jointly or separately file a response to the United States Department of Justice’s submission no later than March 10, 2014 at 5:00 p.m..
B. Attorneys’ Fees and Costs 19. 42 U.S.C. § 1988 states in pertinent part:
(b) Attorney’s fees In any action or proceeding to enforce a provision of section [ ] . . . 1983 . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . including attorney's fees, unless such action was clearly in excess of such officer’s jurisdiction. 42 U.S.C. § 1988(b). 20. Accordingly, Plaintiffs are awarded reasonable attorneys’ fees and costs. Counsel for Plaintiffs shall file their motion for attorneys’ fees and costs on a date to be fixed by the Court. Plaintiffs’ motion shall comply with the Federal Rules of Civil
99
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Procedure and the Local Rules for the United States District Court for the Middle District of Louisiana. VIII. JUDGMENT
Accordingly, IT IS ORDERED that Plaintiffs’ Motion for a Preliminary Injunction (Doc. 12) is DENIED AS MOOT. The Court concludes that the conditions of confinement at Angola’s death row constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Court further concludes that Plaintiffs have failed to establish a prima facie case for discrimination under Title II of the Americans with Disabilities Act, as modified by the Americans with Disabilities Act Amendment Act, and Section 504 of the Rehabilitation Act of 1973. Accordingly, IT IS FURTHER ORDERED that Plaintiffs’ request for declaratory and injunctive relief is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that Defendants shall immediately develop a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit. IT IS FURTHER ORDERED that Defendants shall submit their plan to the Court no later than February 17, 2014 at 5:00 p.m. IT IS FURTHER ORDERED that Defendants’ plan shall include a step-bystep description as to how Defendants will: (1) immediately lower and maintain the
100
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heat index in the Angola death row tiers at or below 88 degrees Fahrenheit; (2) maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit from April 1 through October 31; (3) monitor, record, and report the temperature, humidity, and heat index in each of the death row tiers every two hours on a daily basis from April 1 through October 31; (4) provide Plaintiffs, and other death row inmates who are at risk of developing heat-related illnesses, with (a) at least one cold shower per day; (b) direct access to clean, uncontaminated ice and/or cold drinking water during their “tier time” and the twenty-three hours in which the inmates are confined to their cell; and (c) any and all relief that it is necessary to comply with this Court’s order and the prevailing constitutional standards.
Defendants are advised that financial considerations will not be considered a legitimate reason for Defendants’ failure to comply with this Court’s order.
IT IS FURTHER ORDERED that Defendants shall immediately add Plaintiff James Magee to Angola’s “Heat Precautions List.”
IT IS FURTHER ORDERED that Plaintiffs shall file a response to Defendants’ proposed plan no later than March 10, 2014 at 5:00 p.m.
IT IS FURTHER ORDERED that Plaintiffs and Defendants shall jointly or separately recommend candidates for appointment as Special Master no later than March 10, 2014 at 5:00 p.m. The parties’ recommendations shall be filed into the record of this matter and shall set out the qualifications of the persons so recommended.
IT IS FURTHER ORDERED that Plaintiffs and Defendants shall jointly or
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Case 3:13-cv-00368-BAJ-SCR Document 87 12/19/13 Page 102 of 102

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Elzie Ball, Nathaniel Code, and James Magee,
Plaintiffs,
vs.
James M. LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections, Burl Cain, Warden of the Louisiana State Penitentiary, Angela Norwood, Warden of Death Row, and the Louisiana Department of Public Safety and Corrections,
Defendants.

Civil Action No. 13-368-BAJ-SCR
STATEMENT OF INTEREST OF THE
UNITED STATES

STATEMENT OF INTEREST OF THE UNITED STATES
This litigation presents two questions of vital public importance: (1) Whether Louisiana prison officials are exposing prisoners to extreme heat conditions that constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution or Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12133, and, if so, (2) What remedies are needed to ensure that Louisiana prison officials comply with federal constitutional and statutory civil rights laws. The United States takes no position on the factdependent first question.1 Rather, the United States files this statement of interest to assist the
1 The United States is aware, however, that the Court granted Plaintiffs’ motion for preliminary injunction on July 1, 2013, and in doing so, found that “Plaintiffs have presented an overwhelming amount of evidence indicating that the conditions inside Death Row at Louisiana State Penitentiary are in clear violation of the Eighth Amendment’s ban on cruel and unusual punishment.” [ECF No. 21 at 2].
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Court in determining what remedies would be necessary should the Court find that the Louisiana Department of Corrections violated the federal civil rights of prisoners in its custody. It is the United States’ position that if the Court so finds, it should permit Plaintiffs’ counsel and representatives to access the Louisiana State Penitentiary at Angola (“Angola”) or, in the alternative, appoint an independent monitor to ensure that the injunctive relief Plaintiffs seek is properly implemented.
Interest of the United States The United States has authority to file this Statement of Interest pursuant to 28 U.S.C. § 517, which permits the Attorney General to attend to the interests of the United States in any case pending in federal court.2 The United States, acting through the Civil Rights Division of the U.S. Department of Justice, has an interest in this matter because the alleged unconstitutional correctional practices at Angola fall within the Civil Rights Division’s enforcement authority. Specifically, the Civil Rights Division enforces the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997 et seq., which allows it to investigate and remedy unconstitutional conditions of confinement imposed by state and local governments pursuant to a pattern or practice of civil rights violations. See, e.g. United States v. Miami-Dade County, No. 13-cv-21570 (S.D. Fla. filed May 1, 2013); United States v. Cook County, Ill. No. 10-cv-2946 (N.D. Ill. filed May 13, 2010); United States v. Erie County, N.Y., No. 09-cv-849 (W.D.N.Y. filed Sept. 30, 2009); United States v. Dallas County, Tex., No. 07-cv-1559 (N.D.
2 The full text of 28 U.S.C. § 517 is as follows: “The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
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Tex. filed Sept. 12, 2007); Jones v. Gusman, No. 06cv5275 (E.D. La. filed Aug. 31, 2006); United States v. Terrell County, Ga., No. 04cv76 (M.D. Ga. filed June 7, 2004).3
Background
On June 10, 2013, Plaintiffs Elzie Ball, Nathaniel Code, and James Magee, death row inmates at Angola, filed suit against the Louisiana State Department of Public Safety and Corrections and prison officials seeking declaratory and injunctive relief for extreme heat conditions. Compl. [ECF No. 1]. On June 18, 2013, Plaintiffs moved for a preliminary injunction. Pls.’ Mot. for Prelim. Inj. (“Pls.’ Mot.”) [ECF No. 12]. Defendants responded on June 28, 2013. Defs.’ Mem. in Opp. to Pls.’ Mot. for Prelim. Inj. (“Defs.’ Mem.”) [ECF No. 15].
After considering Plaintiffs’ “overwhelming amount of evidence,” the court granted their Preliminary Injunction Motion on July 1, 2013. Order [ECF No. 21 at 3–4] . The Court found that by Defendants’ own reporting, the heat index on death row often exceeds 150 degrees and “put Plaintiffs in substantial risk of death, paralysis and other extreme health problems.” Order [ECF No. 21 at 1–2]. In response to Defendants’ contention that reducing the heat index would be cost-prohibitive, the Court found “any harm that Defendants might face is financial in nature and therefore plainly outweighed by the threat of substantial injury or death to Plaintiffs.” Id. at 3–4.
Plaintiffs now seek several forms of injunctive relief, as set forth in their Complaint and Motion for Preliminary Injunction. The requested relief includes ordering Angola to maintain the death row heat index at 88 degrees and requiring Defendants to work with Plaintiffs’ experts to implement the heat reduction. Compl. at 11; Pls. Mot. at 26.
3 For a more comprehensive list of cases concerning the constitutionality of conditions in correctional facilities, please visit the Civil Rights Division Special Litigation Section’s website at http://www.justice.gov/crt/about/spl/findsettle.php.
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Discussion
I. If the Court Finds that Unconstitutional Conditions Exist in Angola, the Court Has Broad Authority to Enter Injunctive Relief. If Plaintiffs prevail on the merits of their claims, this Court has broad authority to order
injunctive relief to remedy constitutional violations at Angola. In order to secure final injunctive relief, Plaintiffs must not only prevail on the merits of their claims, they also must demonstrate: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange LLC, 547 U.S. 388, 391 (2006). Given that the question of whether Plaintiffs have satisfied this standard is intertwined with the fact-dependent question of whether Plaintiffs should prevail on the merits, the United States does not opine on whether Plaintiffs have satisfied this four-prong test.
However, if the Plaintiffs have met their burden, it is well established that “the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971); see also Valley v. Rapides Parish Sch. Bd., 702 F.2d 1221, 1225 (5th Cir. 1983); Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir. 1974) (“Having found these numerous constitutional violations . . . the court had the duty and obligation to fashion effective relief.”). While broad, a court’s equitable discretion is not without limits, and a court must tailor injunctive relief to the specific constitutional violations that the relief is meant to correct. Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1041 (5th Cir. 1982). Nonetheless, district courts have wide latitude to fashion comprehensive relief that addresses “each element contributing to the violation” at issue. Hutto
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v. Finney, 437 U.S. 678, 687 & n.9 (1978); see also Milliken v. Bradley, 433 U.S. 267, 282 (1977) (“[W]here . . . a constitutional violation has been found, the remedy does not ‘exceed’ the violation if the remedy is tailored to cure the ‘condition that offends the Constitution.’”). II. Monitoring Mechanisms Are Essential to Ensuring Compliance with the Court’s
Order. The effectiveness of injunctive relief is often contingent on some level of compliance monitoring over a court’s order to restore constitutional conditions in a correctional facility. If a monitoring system is not in place, reliance on “self-certification” can further endanger the constitutional rights of all inmates who are affected by the defendants’ behavior. Benjamin v. Schriro, 370 Fed. App’x 168, 171 (2d Cir. 2010); see also Gary W. v. State of Louisiana, No. 74cv-2412, 1987 WL 12120, at *1 (E.D. La. June 9, 1987) (court-ordered independent monitoring “needed to provide an objective assessment to the Court.”). The importance of a monitoring mechanism is particularly important when an unconstitutional practice is entrenched. Plaintiffs allege that Defendants’ failure to remedy the extreme heat conditions has existed since at least 1991. Pls.’ Mot. at 2–3. If the Court finds that this practice is unconstitutional, it will show an entrenchment of Eighth Amendment violations requiring close observation to ensure compliance. In exercising its enforcement authority under CRIPA, the United States commonly employs two monitoring mechanisms: (1) access to the correctional facility by counsel and representatives (in the form of a team of experts), and (2) court-appointed independent monitors. These monitoring mechanisms are particularly effective and are commonly used by the United States in its corrections practice. Both mechanisms have been approved by the Fifth Circuit.
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A. If the Court Finds Liability, Facility Access to Plaintiffs’ Counsel and Representatives Is an Appropriate Form of Relief. Plaintiffs’ counsel and representatives’ access to Angola is vital to ensuring that
Defendants comply with Court-ordered injunctive relief, if granted. Many court orders and settlement agreements in correctional conditions of confinement cases between the Department of Justice and states or local governments contain “full and complete” provisions granting the United States and its agents “unrestricted” access to the facilities in question. Settlement Agreement, Shreve, et al. v. Franklin County, Oh., et al., No. 2:10-cv-644 (S.D. Ohio, filed July 16, 2010) [ECF 94-1 at 11]; Consent Agreement, Miami-Dade County [ECF No. 1-5 at 31]; Agreed Order, Cook County [ECF No. 3-1 at 53]; Stipulated Order of Dismissal, Erie County [ECF No. 225-1 at 32] (providing for “reasonable access . . . once each six (6) month reporting period”); Agreed Order, United States v. Dallas County, Tex. [ECF No. 8 at 18]; Order, Terrell County, Ga. [ECF No. 82-1 at 28-29] (“DOJ representatives, with their experts, may conduct periodic, unannounced, on-site compliance monitoring tours.”); Consent Judgment, Jones v. Gusman [ECF No. 466 at 40]. Facility access allows the United States to keep abreast of defendants’ implementation of both the ordered relief and the independent monitor’s recommendations for achieving that relief. If defendants fail to reach compliance or take any steps toward compliance, on-site observations give the United States the opportunity to advise the court and potentially take further enforcement action.
The same is true in cases involving private plaintiffs. Several courts have ordered that plaintiffs’ counsel have access rights to monitor progress with court orders for constitutional prison conditions. See, e.g., Ruiz v. Johnson, 164 154 F. Supp. 2d 975, 996 (S.D. Tex. 2001) (“Section XVI of the Final Judgment identifies . . . provisions for prison access and inmate meetings by plaintiffs’ counsel for purposes of monitoring defendant’s compliance. . . .”);
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Inmates of D.C. Jail v. Jackson, 158 F.3d 1357, 1359 (D.C. Cir. 1998) (discussing plaintiffs’ counsel monitoring prison conditions); Adams v. Mathis, 752 F.2d 553, 554 (11th Cir. 1985) (discussing fees of court-ordered compliance monitoring by plaintiff’s counsel).
Most pertinently, in Advocacy Center v. Cain, No. 3:12-cv-508 (M.D. La. filed Aug. 17, 2012), the Louisiana Protection and Advocacy Agency (P&A) brought an access suit against Angola’s prison officials after they denied the P&A access to investigate extreme heat conditions. The parties resolved this litigation through a settlement agreement that provides the P&A’s agents, experts Dr. Susi Vassallo and Mr. James Balsamo (the same experts for the plaintiffs in this matter), with access to Angola. Pursuant to the access provisions, Dr. Vassallo and Mr. Balsamo were able to expeditiously investigate the heat conditions on death row without any known disruption to facility operations or prison security. Granting Plaintiffs and their experts access in this case will allow them to function in the same way as in the Advocacy Center agreement, but with the ultimate goal of enforcing any relief ordered by the Court.
B. If the Court Finds Liability, It May Appoint an Independent Monitor. If the Court finds unconstitutional conditions from the excessive heat on death row at
Angola, it may also choose to appoint an independent monitor. The authority of the Court to appoint a monitor is well established. See Ex Parte Peterson, 253 U.S. 300, 312–13 (1920) (acknowledging inherent power of courts to “appoint persons unconnected with the court to aid judges in the performance of specific judicial duties,” and noting that courts have long exercised this power “when sitting in equity by appointing, either with or without the consent of the parties, special masters, auditors, examiners, and commissioners.”); Gates v. Collier, 501 F.2d 1291, 1321–22 (5th Cir. 1974).
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The United States often uses monitors to ensure compliance with settlement agreements or court orders involving correctional facilities. See, e.g. Consent Agreement, Miami-Dade County [ECF No. 1-5 at 31-33]; Agreed Order, Cook County, Ill. [ECF No. 3-1 at 50–52]; Stipulated Order of Dismissal, Erie County, N.Y. [ECF No. 225-1 at 33–35] (monitor called a “technical compliance consultant”); Agreed Order, Dallas County, Tex. [ECF No. 8 at 19]; Consent Judgment, Jones [ECF No. 466 at 40–42]. In addition, the Fifth Circuit has upheld several appointments of outside monitors in the prison condition context. Sockwell v. Phelps, 20 F.3d 187, 189 n.2 (5th Cir. 1994); Miller v. Carson, 683 563 F.2d 741, 752–53 (5th Cir. 1977). In fulfilling their duties under these agreements, independent monitors are ensured access to the facilities to observe conditions, review records, and speak with both prisoners and prison officials to ensure defendant’s compliance with the injunctive relief.4 An independent monitor can guide implementation of injunctive relief, reduce unnecessary delays, and provide an unbiased tracking record of defendants’ compliance with court-ordered relief. An independent monitor operating in this function also can provide substantial assistance to the Court and the parties, which reduces potential future litigation over compliance disputes.
Conclusion Should the Court find that Louisiana prison officials are exposing prisoners at Angola to extreme heat conditions that constitute cruel and unusual punishment in violation of the Eighth Amendment or Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 1213112133, it has broad powers to order injunctive relief to remedy those conditions. It is the position of the United States, grounded in decades of experience in investigating and litigating
4 For example, in the Orleans Parish Prison consent decree, the language concerning monitor access to the facility was as follows: “The Monitor shall have full and complete access to the Facility, all Facility records, prisoners’ medical and mental health records, staff, and prisoners. OPSO shall direct all employees to cooperate fully with the Monitor. All information obtained by the Monitor shall be maintained in a confidential manner.” Consent Judgment Jones [ECF No. 466 at 41].
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conditions of confinement in prisons such as Angola, that the Court should grant Plaintiffs’
counsel and representatives ongoing access to Angola or, in the alternative, appoint an
independent monitor to ensure that the injunctive relief Plaintiffs seek is properly implemented.
These aspects of final remedy are within the Court’s equitable authority and are minimally
necessary considering the persistent nature of Plaintiffs’ allegations. Federal courts in Louisiana,
the Fifth Circuit, and around the country have included plaintiffs’ right of access or the
appointment of an independent monitor in final injunctive relief, and the Court should do so here
in shaping any relief in this case.
Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division
ROY L. AUSTIN, JR. Deputy Assistant Attorney General United States Department of Justice Civil Rights Division
JONATHAN M. SMITH Civil Rights Division Special Litigation Section
LAURA L. COON Special Litigation Counsel Civil Rights Division Special Litigation Section
s/Marlysha Myrthil MARLYSHA MYRTHIL Trial Attorney Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Telephone: (202) 305-3454 Facsimile: (202) 514-4883
9
Case 3:13-cv-00368-BAJ-SCR Document 64 08/02/13 Page 9 of 10

DATED: August 2, 2013

J. Walter Green ACTING UNITED STATES ATTORNEY
/s/ Catherine M. Maraist Catherine M. Maraist, LBN 25781 Assistant United States Attorney 777 Florida Street, Suite 208 Baton Rouge, Louisiana 70801 Telephone: (225) 389-0443 Fax: (225) 389-0685 E-mail: catherine.maraist@usdoj.gov
Attorneys for the United States of America

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Statement of Interest was filed electronically on this 2nd day of August 2013, with the Clerk of Court for the Middle District of Louisiana using the CM/ECF System, which will send a notice of such filing to all registered parties.
s/Catherine M. Maraist CATHERINE M. MARAIST Assistant United States Attorney

10 Case 3:13-cv-00368-BAJ-SCR Document 64 08/02/13 Page 10 of 10

 
 Case 3:13-cv-00368-BAJ-SCR Document 170 05/23/14 Page 1 of 1

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 13-00368-BAJ-SCR

ORDER APPROVJNG DEFENDANTS' HEAT REMEDIATION PLAN

Considering Defendants' Submission of Heat Remediation Plan (Doc. 118), and

Plaintiffs' Response to Defendants' Submission of Heat Remediation Plan (Doc. 131);

IT IS ORDERED that Defendants' Heat Remediation Plan is APPROVED.

IT IS FURTHER ORDERED that Defendants shall IMMEDIATELY

implement the approved plan, including installing all necessary equipment.

The Court agrees with Plaintiffs, however, that cold showers may not be necessary

once the heat index is lowered and maintained below 88 degrees Fahrenheit.

Accordingly, the Court reserves t he right to issue further orders regarding this

requirement at a later date.

Baton Rouge, Louisiana, this 23~ay of May, 2014.

BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

 
 Case 3:13-cv-00368-BAJ-SCR Document 173 05/29/14 Page 1 of 1

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CMLACTION NO.: 13-00368-BAJ-SCR

FINAL ORDER APPOINTING SPECIAL MASTER
Considering Paul J . Hebert's Affidavit (Doc. 172); IT IS ORDERED that Paul J . Hebert ofOttinger Hebert, L.L.C. in Lafayette, Louisiana is appointed SPECIAL MASTER. IT IS FURTHER ORDERED that all other aspects of the Court's Order Conditionally Appointing Paul J. Heber t as Special Master (Doc. 171) shall be implemented IMMEDIATELY.
.--. ~
Baton Rouge, Louisiana, this /-.. 1 - day of May, 2014.

BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 13-00368-BAJ-SCR

JUDGMENT
IT IS ORDERED that Defendants' Motion for Entry ofFina) Judgment Pursuant to FRCP 58(d) (Doc. 91) is GRANTED. '
IT IS FURTHER ORDERED that the parties' Joint Motion and Incorporated Menlorandum for Expedited Entry of Final Judgment (Doc. 174) is GRANTED.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that JUDGMENT is hereby re nd ered IN FAVOR ofPlaintiffs Elzie Ball. Nathaniel Code, a nd James Magee a nd AGAINST Defendants James M. LeBlanc, Nat han Burl Cain, Angelia Norwood, and the Louis iana Department ofPublic Safety and Corrections as to Plaint iffs' cla ims und e r the Eighth Amendment to the United States Constitution.

I The Court notes t ha t Plaintiffs initiaLly oppose d De fe nd a nts' request for a final judgment. (Doc . 99.) Howeve l' , th e parties now jointly requ est the COlll't iss ue a final j ud g me nt in t he matte r. (Doc . 17,1.)

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that JUDGMENT is hereby rendered IN FAVOR of Defendants James M. LeBlanc, Nathan Burl Cain, Angelia Norwood, and the Louisiana Department ofPublic Safety and Corrections and AGAINST Plaintiffs Elzie Ball, Nathaniel Code, and James Magee as to Plaintiffs' claims under Title II of the Americans with Disabilities Act, as modified by the Americans with Disabilities Act Amendment Act a nd Section 504 of the Rehabilitation Act of 1973.
IT IS FURTHER ORDERED that Plaintiffs shall file their motion for attorneys' fees no later than July 14, 2014.

.~ Baton Rouge , Louisiana, this

day of June, 2014.

BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

2

 
 Case: 14-30067 Document: 00513108060 Page: 1 Date Filed: 07/08/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30067

United States Court of Appeals Fifth Circuit
FILED
July 8, 2015

ELZIE BALL; NATHANIEL CODE; JAMES MAGEE,

Lyle W. Cayce Clerk

Plaintiffs - Appellees Cross-Appellants

v.

JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; ANGELA NORWOOD, Warden of Death Row; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,

Defendants - Appellants Cross-Appellees

Appeals from the United States District Court for the Middle District of Louisiana
Before REAVLEY, JONES and ELROD, Circuit Judges. EDITH H. JONES, Circuit Judge:
In 2006, Louisiana built a new state-of-the-art prison facility to house death-row inmates. The cells in that facility, located in Angola, Louisiana, lack air conditioning. Three inmates sued the Louisiana Department of Corrections (the “State”) and various prison officials in their official capacities,1 claiming
1 The officials include James M. LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections; Nathan Burl Cain, Warden of the Louisiana State Penitentiary in Angola; and Angela Norwood, Assistant Warden in charge of death row. We refer to all appellants collectively as “the State” because suit against officials in their official capacity only is essentially against the State of Louisiana.

Case: 14-30067 Document: 00513108060 Page: 2 Date Filed: 07/08/2015
No. 14-30067 that the heat they endure during the summer months violates the Eighth Amendment because of their pre-existing medical problems. They also assert that the failure to provide air conditioning violates the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the Rehabilitation Act (“RA”), 29 U.S.C. § 794. After a bench trial, the district court sustained the prisoners’ Eighth Amendment claims, rejected their disability claims, and issued an injunction effectively ordering the Defendants to install air conditioning throughout death row.
Although the trial court’s findings of deliberate indifference by prison officials to these particular inmates’ serious heat-related vulnerability suffice to support a constitutional violation, the scope of its injunctive relief exceeds our prior precedent, Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004), and the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626. Despite an oversight concerning applicable law, the court did not err in rejecting the prisoners’ disability claims. We affirm in part, but vacate and remand the court’s injunction for further consideration.2
BACKGROUND Angola’s 25,000 square-foot death-row facility3 consists of a pod surrounded by four housing wings. Inside the pod are administrative offices, visitation rooms, a medical and dental clinic, a control center, and an execution chamber. Within each of the four housing wings, two tiers of cells sit back-toback. Each tier is lettered A through H. None of the housing tiers are air conditioned, but the rest of the facility is. To alleviate the summer heat, windows (which can be opened) line the exterior wall of each housing tier. Next
2 Our issuance of this ruling renders moot the Plaintiffs’ request that we lift the stay pending appeal.
3 The death row unit is one of several buildings collectively known as the “Louisiana State Penitentiary” or “Angola.” Only the death-row facility is implicated here, however.
2

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No. 14-30067 to the windows are 30-inch fans, which serve two adjoining cells. Inside each cell is a six-by-eight-inch vent that draws air into the cell from the window across the tier and vents outside.
Although death-row inmates spend twenty-three hours a day in their cells, in-cell sinks provide unlimited access to potable water. Inmates also enjoy access to ice. Each housing tier has an ice chest, which the Angola staff maintains. Inmates can only access the chest themselves during the one hour a day they are allowed to walk the tiers. The rest of the time inmates depend on guards or other inmates for ice.4 The uncontroverted evidence shows that the ice chests run out from time to time, either because the lone ice machine cannot generate enough ice or it breaks.
The three plaintiffs here, Elzie Ball, Nathaniel Code, and James Magee, are long-time residents of Angola’s death-row facility. Magee lives on tier A, while Ball and Code live on tier H. Each suffers from various conditions: all three prisoners have hypertension; Ball has diabetes and is obese; Code is also obese and has hepatitis; and Magee is depressed and has high cholesterol. They take a variety of medications to control their ailments. According to the inmates, the extreme heat, not ameliorated by air conditioning, exacerbates their ailments, causing dizziness, headaches, and cramps.
Each inmate filed administrative complaints explaining that the heat was exacerbating his conditions and requesting air conditioning. The Defendants denied their requests. Internal appeals of the rulings were unsuccessful. Consequently, in June 2013, the inmates sued the Louisiana Department of Corrections and prison officials asserting claims under the
4 Inmates can distribute ice to other inmates during the one hour they are allowed to walk the tiers. If, however, those inmates spend their free hour in recreation or showering, then the other inmates may not receive ice.
3

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No. 14-30067 Eighth Amendment’s ban on cruel and unusual punishment and violations of the ADA and RA. As relief, the prisoners sought an injunction requiring the state to keep the heat index at or below 88º F.
A month later, the district court appointed United States Risk Management (“USRM”) to monitor the temperature at the facility. During the monitoring period, July 15 to August 5, the temperature on tiers A and H ranged from 78.26º to 92.66º F.5 Meanwhile, the heat index ranged from 81.5º to 107.79º F. On five separate days the heat index on tier A surpassed 100º F. On tier H, the heat index surpassed 100º F on seven days.
After the data collection period, the district court held a three-day bench trial. Experts testified about the Plaintiffs’ medical conditions, the conditions on death row, the design and construction of the facility, and the effectiveness of current practices and procedures. The judge personally toured the facility to observe the conditions first-hand. Several months later, the district court issued a 100-page ruling that concluded the conditions on death row are cruel and unusual because of extreme heat during parts of the year. The court denied the prisoners’ ADA and RA claims because they are not disabled. Based on the constitutional violation, the court issued a permanent injunction, requiring the state to develop a plan to keep the heat index at or below 88º F. Effectively, the district court ordered Louisiana to install air conditioning. Both sides now appeal.
5 USRM monitored the temperature on all the tiers. But because the Plaintiffs only reside on tiers A and H, and because this is not a class-action, only readings from those tiers are relevant to this appeal.
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No. 14-30067 DISCUSSION The parties present four issues. The Defendants assert that the district court made several erroneous evidentiary rulings, wrongly found a constitutional violation, and issued an overbroad injunction contrary to the PLRA, 18 U.S.C. § 3626, and Gates v. Cook, 376 F.3d 323 (5th Cir. 2004). The inmates’ cross-appeal contends that the district court used a superseded definition to determine whether they are disabled under the ADA and RA. We review the liability issues first, then the scope of the injunction.
I. Evidence The State’s evidentiary objections are easily resolved. It contends that the heat index, on which the district court based its ruling, is inherently unreliable and inappropriate in prison settings. It also contends that the court should not have taken judicial notice of other facts without providing the State an opportunity to respond. The objections are meritless. We review evidentiary rulings for abuse of discretion. Battle ex rel. Battle v. Mem’l Hosp. at Gulfport, 228 F.3d 544, 550 (5th Cir. 2000) (citing JonT Chemicals, Inc. v. Freeport Chem. Co., 704 F.2d 1412, 1417 (5th Cir. 1983)). Even if the court abused its discretion, this court will presume the error is harmless. See FED. R. CIV. P. 61; Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). The party asserting the error has the burden of proving that the error was prejudicial. See Dietz v. Consol. Oil & Gas, Inc., 643 F.2d 1088, 1093 (5th Cir. 1981) (quoting Liner v. J.B. Talley and Co., Inc. 618 F.2d 327, 329 (5th Cir. 1980)). The district court did not abuse its discretion by admitting evidence of or relying on the heat index. The thrust of the State’s argument is that because heat index is a derived number, courts cannot use it as a basis for ruling. Although the State’s expert meteorologist, Jay Grymes, testified that the heat index is “not a real number,” the rest of his testimony bolsters the use of the
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No. 14-30067 heat index. For example, Grymes testified that the heat index is a “guideline number” and that he “provide[s] heat index as a guide to [his] viewers to make better decisions.” Dr. Susi Vassallo, the Plaintiffs’ expert, testified that peer reviewed scientific articles measure the correlation between heat index and morbidity and mortality. This court also has relied on the heat index before. See Gates, 376 F.3d at 339 (upholding increased access to ice, water, and showers when the heat index exceeds 90º F.). In the absence of further proof, the court did not abuse its discretion.
The State’s complaint about the court’s taking judicial notice of publicly available evidence is similarly weak. The court cited an article from the National Weather Service’s website called Heat: A Major Killer and referred to temperature readings from the Baton Rouge Regional Airport.
Because the district court did not warn the State that it would be taking judicial notice of these materials, the State complains it was “deprived of the opportunity to request an opportunity to be heard regarding the data.” Rule 201, however, expressly contemplates courts’ taking judicial notice without prior warning. See FED. R. EVID. 201(e) (“If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.” (emphasis added)); 21B KENNETH W. GRAHAM, JR., FED. PRAC. & PROC. EVID. § 5109 (2d ed.) (Rule 201 does “not require any notice to the parties that judicial notice [is] about to be taken,” and “a party might get no advance notice at all”). The State, moreover, did not avail itself of the Rule’s provision requiring the court to provide an opportunity to be heard. See FED. R. EVID. 201(e); See also FED. R. CIV. P. 59(a)(2) (“After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”). In any event, the State’s explanation of prejudice is vague, cursory and unpersuasive. It makes no showing that the
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No. 14-30067 district court’s consideration of the National Weather Service article or Baton Rouge temperature readings altered the outcome. See Dietz, 643 F.2d at 1093. The judicial notice objections fail as well as the heat index objection.
II. Eighth Amendment Turning to the Plaintiffs’ Eighth Amendment claims, the Constitution “ ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones.” Farmer v. Brennan. 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981)). Extreme cell temperatures, therefore, can violate the Eighth Amendment. To be tantamount to the infliction of cruel and unusual punishment, prison conditions must pose “an unreasonable risk of serious damage” to a prisoner’s health – an objective test – and prison officials must have acted with deliberate indifference to the risk posed—a subjective test. Helling v. McKinney, 509 U.S. 25, 33-35, 113 S. Ct. 2475, 2481-82 (1993) (holding exposure to an “unreasonable risk of damage to [a plaintiff’s] health” actionable under the Eighth Amendment); see also Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327 (1991) (postulating that “a low cell temperature at night combined with a failure to issue blankets” can violate the Eighth Amendment); Gates, 376 F.3d at 339. Without the requisite proof of both subjective and objective components of an Eighth Amendment violation, however, merely “uncomfortable” heat in a prisoner’s cell does not reflect “a basic human need that the prison has failed to meet” and is not constitutionally suspect. Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995). The predicate findings of a substantial risk of serious harm and officials’ deliberate indifference to the risk are factual findings reviewed for clear error. Gates, 376 F.3d at 333; Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010) (citing Farmer, 511 U.S. at 842, 114 S. Ct. at 1981). “ ‘A finding is clearly erroneous if it is without substantial evidence to support it, the court
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No. 14-30067 misinterpreted the effect of the evidence, or this court is convinced that the findings are against the preponderance of credible testimony.’ ” Petrohawk Props., L.P. v. Chesapeake La., L .P., 689 F.3d 380, 388 (5th Cir. 2012) (quoting French v. Allstate Indem. Co., 637 F.3d 571, 577 (5th Cir. 2011)). This court reviews de novo whether the facts so found violate the Eighth Amendment. Gates, 376 F.3d. at 333.
For various reasons, the State asserts that the Plaintiffs are not at substantial risk of serious harm and its officials were not deliberately indifferent to this risk. Further, the State contends that, because it provides the remedies this court mandated in Gates, there can be no Eighth Amendment violation as a matter of law. We reject these challenges to the trial court’s findings.
Based mainly on Dr. Vassallo’s testimony, the district court found that the heat puts these plaintiffs at substantial risk of serious harm. According to Dr. Vassallo, the cardiovascular system is critical for maintaining normal body temperature. Dr. Vassallo testified that both hypertension and diabetes can adversely affect this critical system. “The heart has to be able to pump very hard to meet the demands of heat.” Hypertension generally can decrease “the ability of the blood vessels to open and close.” As a result, those vessels are “not as compliant as they should be,” “they can’t open like they should and have to in response to heat,” and blood therefore cannot circulate to cool the body. Therefore, people with hypertension generally can have a hard time controlling their body temperature. The same is true for people with diabetes. Cardiovascular disease, which can result from diabetes, can harden the arteries and blood vessels, thus inhibiting circulation. As a result, diabetics can lose ability to circulate blood properly and thus the ability to maintain normal body temperature.
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No. 14-30067 The treatments for hypertension can further inhibit these prisoners’ ability to regulate body temperature. Specifically, beta blockers, which help control blood pressure, can compound the effects hypertension has on the cardiovascular system. Beta blockers prevent blood vessels from dilating properly while at the same time “decreas[ing] the heart’s ability to pump as hard and to meet the requirements of heat or exercise.” Likewise, diuretics decrease the total amount of water and salt in the body, resulting in less fluid around which the heart can contract. According to Dr. Vassallo, without sufficient fluid to contract, the heart is unable to meet the increased demands heat places on the cardiovascular system. Therefore, even if prisoners receive proper care for their ailments, they may be at increased risk of heat stroke. This evidence of the Plaintiffs’ heightened vulnerability to high temperatures, combined with the USRM temperature data showing the high temperatures on tiers A and H, led the court to find that the Plaintiffs are at substantial risk of serious harm. The State argues that the totality of the record evidence refutes Dr. Vassallo’s opinion. Specifically, the district court discounted the State’s arguments that no death-row prisoner has ever suffered a heat-related incident; these prisoners’ medical records show no signs of heat-related illness; the prisoners’ poor dietary choices and failure to exercise caused their health problems; and the prisoners’ suffer high blood pressure all year, not just in the summer months. Thus, the State contends, the prisoners do not suffer an unreasonable risk of serious heat-related injury at all.
These facts fail to show that the district court clearly erred. First, that no one at Angola, including these plaintiffs, has ever had a heat-related incident and that these prisoner’s medical records do not show signs of heatrelated illness are insufficient. To prove unconstitutional prison conditions, inmates need not show that death or serious injury has already occurred. See
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No. 14-30067 Helling, 509 U.S. at 33, 113 S. Ct. at 2481 (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition.”). They need only show that there is a “substantial risk of serious harm.” Gates, 376 F.3d at 333. Further, Dr. Vassallo provided a reasonable explanation for the lack of past harm to these plaintiffs: “heat stroke is a failure of thermoregulation which is dramatic and catastrophic. It occurs suddenly . . . . People can suffer suddenly from heat stroke without ever having complained about the weather.” As a result, the district court plausibly concluded that the Plaintiffs here are at a substantial risk of serious harm.6
Second, because the Plaintiffs forego exercise and overeat junk food, the State asserts that their ailments and any accompanying risk are their own creation. Prison canteen records confirm these inmates’ consumption of unhealthy foods with high sugar and salt content. Although this may be true, the evidence is at best conjectural about the connection between these plaintiffs’ conditions and their lifestyle. We are constrained to agree with the district court’s finding that, canteen food comprises only part of the prisoners’ diets, and their medical conditions arise from a combination of factors, many of which are outside their control. Thus, the district court did not clearly err when, in the face of conflicting evidence, it found that these prisoners are at substantial risk of serious harm.
Finally, that the prisoners suffer year-round high blood pressure is simply irrelevant to the district court’s substantial-risk finding. The prisoners’ complaint is that their high blood pressure places them at an abnormally high risk of heat stroke during Louisiana’s extended hot season. The lower risk in other months does not offset their vulnerability during the summer any more
6 We emphasize, however, that the finding of substantial risk regarding a heat-related injury is tied to the individual health conditions of these inmates.
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No. 14-30067 than an allergy to insect bites ceases to exist when the bugs are dormant in winter.
The second element for Eighth Amendment liability requires “prison official[s] [to] have a ‘sufficiently culpable state of mind.’ ” Farmer, 511 U.S. at 834, 114 S. Ct. at 1977 (quoting Wilson, 501 U.S. at 297, 111 S. Ct. at 2323). “In prison conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302-303, 111 S. Ct. at 2326). Deliberate indifference is itself a two-prong inquiry. An official must both be “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and “he must also draw the inference.” Id. at 837, 114 S. Ct. at 1979. “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842, 114 S. Ct. at 1981 (internal citations and quotation marks omitted).
The district court relied on a variety of evidence showing that the State knew of and disregarded a substantial risk to the Plaintiffs. Medical personnel routinely monitor prisoners and administer medication daily. Correctional officers “closely monitor” the temperature on death row, recording the temperature every two hours. Defendant Norwood, moreover, testified that the prison maintains a list of, and monitors more closely, inmates particularly susceptible to heat-related illness. None of the Plaintiffs was on the list, although Norwood personally reviewed the ARPs for each prisoner, inspected each prisoner’s medical records, interviewed both Ball and Code, and admits Magee should have been on the list. Defendant Cain admitted that he was always thinking about “how to overcome the heat” and that he considered adding extra fans and ice on the tiers. Most strikingly, after this suit was filed,
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No. 14-30067 and during the court-ordered monitoring period the Defendants surreptitiously installed awnings and began soaking some of the tiers’ exterior walls with water in an attempt to reduce the interior temperature. Their trick backfired. Based on these facts, the district court reasonably inferred that the Defendants knew of a substantial risk of serious harm to the Plaintiffs.
Yet the State complains that the deliberate indifference finding is fundamentally flawed because the district court relied solely on the prisoners’ administrative remedy requests, which are required under the PLRA. See 42 U.S.C. § 1997e(a). If that is sufficient to prove deliberate indifference, the State continues, then there is no need for a court to separately analyze the deliberate indifference prong. As a statutory necessity, see Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012), every case includes an administrative remedy request. Whenever a court finds that a prisoner’s complaint was justified—i.e., that there is a substantial risk of harm—the defendant will be guilty of violating the Eighth Amendment.
We agree with the Defendants’ premise—a request for administrative relief cannot alone prove deliberate indifference. A request for administrative relief is at best only circumstantial evidence that a prison official is aware of facts from which he can deduce a risk of harm; it is not even particularly strong evidence of that. Because grievances are essentially pleadings, not evidence, they must have independent verification before they become probative. Separating the few meritorious complaints from the mountain of frivolous complaints is as difficult work for prison officials as for federal courts. A legitimate complaint can go unrecognized by even the most diligent official. As a result, a prison administrator who has received an administrative remedy request is not necessarily made aware, without factual corroboration, that there is a substantial risk of serious harm.
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No. 14-30067 Although the State’s premise is correct, its conclusion that the district court’s deliberate indifference finding is erroneous does not follow. The district court did not base its finding solely on the prisoners’ administrative requests, but on the totality of the record evidence. There is more than enough, particularly in light of the State’s attempt to cool down the cells with awnings and misting without telling the court, to prove subjective awareness of a substantial risk of serious harm. Therefore, the district court’s deliberate indifference finding is not clearly erroneous. Even if it cannot overcome the district court’s factual findings, the State argues that this court’s decision in Gates v. Cook precludes liability. Gates upheld an injunction requiring Mississippi to equip each cell with fans, provide inmates with additional access to ice water, and allow daily showers when the heat index in the cells exceeded 90º F. 376 F.3d at 339. The State claims to offer these exact remedies year-round. The district court, however, demonstrated that Gates is distinguishable. Where Gates approved fans for each cell, each fan in Angola’s death row serves two cells. Ball v. LeBlanc, 988 F. Supp. 2d 639, 680 n.100 (M.D. La. 2013). Although a seemingly minor difference, the district court found that “the fans [at Angola] [do] not provide equal amounts of air flow to each cell, nor [do] the fans provide a detectable cooling effect.” Id. The district court in Gates also ordered increased in-cell access to ice. 376 F.3d at 339. Here, by contrast, inmates have unfettered access to ice only during the one hour a day they can walk the tiers.7 Ball, 988 F. Supp. 2d at 680 n.100. When the prisoners are in their cells, they depend on other inmates or guards for ice. Id. And while the State allows prisoners to shower once a day, as approved in Gates, the water
7 Even then, obtaining ice is no guarantee. The record suggests that the ice machine occasionally breaks down leaving the tier ice chests empty.
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No. 14-30067 temperature is maintained between 100 and 120º F. for sanitation purposes, thus providing little relief from the heat. Id. Given these material differences, Gates does not preclude holding that the State violated the Eighth Amendment.
Based on its findings of fact, we affirm the district court’s conclusion that housing these prisoners in very hot cells without sufficient access to heat-relief measures, while knowing that each suffers from conditions that render him extremely vulnerable to serious heat-related injury, violates the Eighth Amendment.
III. Disability Claims The inmates assert that the State’s failure to alleviate the heat violates their rights to a reasonable accommodation for their “disabilities” under the ADA and RA.8 The district court rejected the prisoners’ claims because they presented no evidence that they are disabled.9 Ball, 988 F. Supp. 2d at 687. The prisoners argue that the district court’s conclusion rests on an abbreviated definition of disability and superseded case law. Although the prisoners are correct, there is still no evidence that the prisoners are disabled under the correct definition, so any error was harmless. We review the district court’s conclusions of law de novo, and its factual findings for clear error. Lightbourn v. Cnty. Of El Paso, Tex., 118 F.3d 421,
8 On appeal, the prisoners also assert a disparate-impact claim. But the prisoners’ complaint does not allege a disparate-impact claim and, as far as we can tell, this appeal is the first time the prisoners have asserted such a claim. “It is a bedrock principle of appellate review that claims raised for the first time on appeal will not be considered.” Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctr., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). Accordingly, we will not address the prisoners’ disparate-impact claim.
9 To succeed on a failure-to-accommodate claim, a plaintiff must prove: (1) he is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered entity; and (3) the entity failed to make reasonable accommodations. Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013). The ADA applies to
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No. 14-30067 426 (5th Cir. 1997). If the district court made a legal error that affected its factual findings, “remand is the proper course unless the record permits only one resolution of the factual issue.” Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S. Ct. 1781, 1792 (1982); see also Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir. 2014), cert. denied, No. 14-1138, 2015 WL 1255228, at *1 (June 22, 2015).
Under both the ADA and RA,10 a person is disabled if he has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). The statute defines a major life activity in two ways. First, major life activities include, but are not limited to:
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Id. § 12102(2)(A). Second, a major life activity includes “the operation of a major bodily function.” Id. § 12102(2)(B). Such functions include, but are not limited to:
the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Id. The prisoners can prove themselves disabled if their ailments substantially limit either a major life activity or the operation of a major bodily function.
The prisoners point out that the district court considered whether they are disabled only under the first definition of major life activities; it did not
prisoners. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952, 1956 (1998). The district court found each prisoner failed to prove the first prong—i.e., that they are disabled.
10 The RA incorporates the ADA definition of disability by reference. See 29 U.S.C. § 705(20)(B). Accordingly, if the prisoners are disabled, they are disabled under both statutes.
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No. 14-30067 consider whether their impairments affect a major bodily function. We agree. The district court quoted only the first definition of a disability, but it overlooked that “a major life activity also includes the operation of a major bodily function.” Id. § 12102(2)(B). The district court also partially relied on Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681 (2002), which Congress superseded in the Americans with Disabilities Amendments Act of 2008 (“ADAAA”). Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245 (5th Cir. 2013).
Although this error may have affected the district court’s determination, the question remains whether any evidence supports the prisoners’ disability claims. The prisoners argue that “thermoregulation” is a major life activity, there is ample evidence in the record showing their thermoregulatory functions are impaired, and therefore they are disabled.
Assuming arguendo that thermoregulation is a major life activity,11 there is no evidence that these prisoners’ thermoregulatory systems are actually impaired. According to Dr. Vassallo, thermoregulation is “the capacity of the body to maintain the temperature of 98.6 within half a degree or so.” There is no evidence that the prisoners’ ailments have ever caused their body temperatures to rise above 98.6º F. In fact, Dr. Vassallo testified that the prisoners’ symptoms are consistent with normal body temperatures, there is no indication that these prisoners have ever had elevated body temperatures,
11 The prisoners urge this court to hold that thermoregulation is a major bodily function (and thus a major life activity) because the ADA’s list is non-exhaustive. See 42 U.S.C. § 12102(2)(B). Before the passage of the ADAAA, this court left undecided whether “the regulation of body temperature constitutes a major life activity under the ADA.” EEOC v. Argo Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009). Post-ADAAA, no court has held that thermoregulation is a major bodily function, nor do EEOC regulations list thermoregulation as a major bodily function. 29 C.F.R. § 1630.2(i)(1)(ii). Accordingly, we take the cautious route and assume without deciding that thermoregulation is a major life activity.
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No. 14-30067 and there is no evidence that these prisoners ever experienced difficulty in thermoregulating.
That the record is devoid of such evidence is unsurprising. Over the course of the three-day trial, there is hardly any mention of the prisoners’ disability claims. The overwhelming majority of the testimony related to the future risk of heatstroke, not the prisoners’ present inability to maintain regular body temperature. As a result, the medical testimony focused generally on the risks to individuals with the same ailments as these prisoners, not on any limitations the prisoners presently experience. The prisoners’ counsel, moreover, never asked the three medical experts whether the prisoners’ thermoregulatory systems are actually impaired, probably because evidence in the record precludes any such assertion. This lapse is fatal to their disability claims. As this court has said before, although the current definition of disability “expresses Congress’s intention to broaden the definition and coverage of the term ‘disability,’ it in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination.” Neely, 735 F.3d at 245.12 The disability claims are insupportable as a matter of law even under the expanded legal definition of disability.
12 Ball also argues that he is disabled because diabetes impairs his endocrine system and his sight. Although this might be true, that Ball’s endocrine system and sight are impaired does not entitle him to relief from the heat. Only if Ball’s diabetes limits his ability to thermoregulate, can Ball get the only relief he requested—an order requiring Louisiana to keep the prison at or below 88 degrees. As for that claim—that Ball’s diabetes impairs thermoregulation—there is no evidence in the record.
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No. 14-30067 IV. The Injunction To remedy the Eighth Amendment violation, the district court ordered Louisiana to “develop a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit.” Ball, 988 F. Supp. 2d at 689. Effectively, the plan requires the State to install air conditioning throughout death row housing. The State attacks the district court’s order in two ways. First, it contends that the requirements for injunctive relief are not present here. Second, it argues that the injunction is overbroad because air conditioning is beyond the measures endorsed in Gates v. Cook and facilitywide relief violates the PLRA. This court reviews permanent injunctions for abuse of discretion. Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 254 (5th Cir. 2014) (citing N. Alamo Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916-17 (5th Cir. 1996)). An abuse of discretion occurs when the district court “ ‘(1) relies on clearly erroneous factual findings when deciding to grant or deny the permanent injunction[,] (2) relies on erroneous conclusions of law when deciding to grant or deny the permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunctive relief.’ ” Id. (quoting N. Alamo Water Supply Corp., 90 F.3d at 916-17). The court did not abuse its discretion by deciding to issue an injunction. The State’s first argument is that an injunction is improper because conditions to which these prisoners were subjected do not violate the Eighth Amendment. This contention fails in light of our sustaining the district court’s Eighth Amendment analysis. Moreover, in Gates as in other cases, courts have upheld injunctions in Eighth Amendment cases alleging unreasonably risky exposure to extreme temperatures. See Graves v. Arpaio, 623 F.3d 1043, 1045 (9th Cir. 2010) (per curiam) (leaving an injunction in place requiring a prison to keep inmates on certain medications in cells with temperatures below 85 degrees);
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No. 14-30067 Jones-El v. Berge, 374 F.3d 541, 542 (7th Cir. 2004) (upholding order to install air conditioning in Wisconsin’s “supermax” prison).
The scope of the injunction is another matter. The PLRA greatly limits a court’s ability to fashion injunctive relief. Before a district court can award such relief, it must find that “such relief is narrowly 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.” 18 U.S.C. § 3626(a)(1)(A). The court must also “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Id. If, after making the necessary findings and weighing the adverse impact on the criminal justice system, the court still feels injunctive relief is required, such relief “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” Id.
The district court’s injunction violates the PLRA in two ways. First, the district court ordered a type of relief—air conditioning—that is unnecessary to correct the Eighth Amendment violation. Under the PLRA, plaintiffs are not entitled to the most effective available remedy; they are entitled to a remedy that eliminates the constitutional injury. See Westefer v. Neal, 682 F.3d 679, 683-84 (7th Cir. 2012) (vacating an injunction under the PLRA because it exceeded what was required under the Due Process Clause). In Eighth Amendment cases, plaintiffs can only obtain a remedy that reduces the risk of harm to a socially acceptable level. Some risk is permissible and perhaps unavoidable. Here Plaintiffs’ own expert, Dr. Vassallo, explained that there are many acceptable remedies short of facility-wide air conditioning. For example, the Defendants could divert cool air from the guards’ pod into the tiers; allow inmates to access air conditioned areas during their tier time; allow access to cool showers at least once a day; provide ample supply of cold drinking water and ice at all times; supply personal ice containers and individual fans;
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No. 14-30067 and install additional ice machines. These are precisely the types of remedies this court endorsed in Gates v. Cook and that the PLRA requires. See 376 F.3d at 339-40. Accordingly, on remand the district court must limit its relief to these types of remedies.
The district court also erred because it awarded relief facility-wide, instead of limiting such relief to Ball, Code, and Magee. The district court apparently understood that it could not order facility-wide relief. At the start of trial, the district court said:
This is not, contrary to widespread belief, an effort to require the state to install air-conditioning for all of the tiers that house all death row inmates. I think the application for injunctive relief made clear that it’s only these three inmates that are of issue. And so, of course, the evidence in this case will pertain to any facts that are relevant as to these three . . . . plaintiffs and these three plaintiffs only. This is not a class action lawsuit. This is not, again, an effort to seek relief for anyone other than these three inmates.
It is unclear why the district court changed its mind when it fashioned the injunction. The PLRA limits relief to the particular plaintiffs before the court. 18 U.S.C. § 3626(a)(1)(A). This is not a class action; Ball, Code, and Magee are the only plaintiffs before the court. As a result, any relief must apply only to them, if possible. Brown v. Plata, --- U.S. ---, 131 S. Ct. 1910, 1940 (2011) (holding that “the scope of the order must be determined with reference to the constitutional violations established by the specific plaintiffs before the court”); Gates, 376 F.3d at 339 (vacating an injunction that purportedly applied to prisoners outside the class of plaintiffs because “it exceeds the scope of the litigation”); see also Graves, 623 F.3d at 1049-50 & n.2 (noting that if the district court can limit relief to an affected class-member, it must do so under the PLRA).
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No. 14-30067 Nevertheless, the district court ordered relief to all 85 death-row inmates because “the Defendants may move any death row inmate to a different tier and/or cell at any time.” Ball, 988 F. Supp. 2d at 688-89. Essentially, it felt the only way to provide effective relief to these three plaintiffs is to provide facility-wide relief. The district court’s determination, however, is erroneous. Even assuming that air conditioning is an acceptable remedy here—and it is not—it is possible to provide air conditioning solely to these three inmates. As the Defendants acknowledged at oral argument, Plaintiffs could be placed in cells next to the officers’ pod, which are cooler than those farther down the tiers. Louisiana could also air condition one of the four tiers for the benefit of prisoners susceptible to heat-related illness. When coupled with an order not to move the Plaintiffs from these cells unless certain conditions are met, these options could adequately remedy the Plaintiffs’ constitutional violation. Moreover, the Gates-type remedies available on remand—increased access to water, ice, cold showers, etc.—ought to (and must) be tailored to these three prisoners. Because the district court’s injunction provides an unnecessary type of relief and applies beyond these three Plaintiffs, it violates the PLRA. Accordingly, the district court abused its discretion. Finally, we note the substantial disparity between the relief ordered in Gates and the scope of the injunction in this case. The Gates court did not mandate a maximum heat index applicable in the Mississippi prison. It required particular heat measures, including fans, ice water, ice, and showers, “if the heat index reaches 90 degrees or above.” Gates, 376 F.3d at 336. The injunction here requires relief that is far more extensive, applies even during months when there is no heat risk to the Plaintiffs, covers the entire facility, and of course is expensive. Since Gates upheld an injunction providing narrower relief, and there is no showing that the Constitution mandated more
21

Case: 14-30067 Document: 00513108060 Page: 22 Date Filed: 07/08/2015 No. 14-30067
relief for these prisoners for the same prison condition in this case, on remand the court must craft relief more closely aligned with Gates as well as consistent with the PLRA.
CONCLUSION For the foregoing reasons, we AFFIRM the district court’s resolution of the Eighth Amendment and disability claims, but VACATE and REMAND the district court’s injunction for reconsideration under the principles stated here.
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REAVLEY, Circuit Judge, dissenting. I agree with almost all of the opinion, but I would affirm the injunction
which in principal only orders the heat index in the Angola death row tiers to be maintained below 88 degrees.
23

 
 Case 3:13-cv-00368-BAJ-EWD Document 216 11/20/14 Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, NATHANIEL CODE, AND JAMES MAGEE,
PLAINTIFFS
VS.
JAMES M. LEBLANC, SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, BURL CAIN, WARDEN OF THE LOUISIANA STATE PENITENTIARY, ANGELA NORWOOD, WARDEN OF DEATH ROW, AND THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
DEFENDANTS

* CIVIL ACTION NO. 13-368 * * * * * * * JUDGE: BAJ * * * * MAGISTRATE: SCR * * * * * *

PLAINTIFFS’ MOTION TO SET ATTORNEYS’ FEES AND COSTS REGARDING MAINTENANCE OF THE STATUS QUO
NOW INTO COURT COME PLAINTIFFS Elzie Ball, Nathaniel Code, and James Magee, through undersigned counsel, and move for an Order setting an award of Attorneys’ Fees and Costs with respect to Plaintiffs’ Motion to Maintain the Status Quo (Rec. Doc. 203) in the above-captioned matter, pursuant to this Court’s Order of Oct. 30, 2014 (Rec. Doc. 214), in the amount of $16,649.00 in fees and $243.04 in costs. In support of their motion, Plaintiffs submit the accompanying Memorandum of Law, along with accompanying exhibits and attachments, and Proposed Order.
Date: Nov. 20, 2014

1

Case 3:13-cv-00368-BAJ-EWD Document 216 11/20/14 Page 2 of 2
Respectfully submitted,
/s/ Mercedes Montagnes Mercedes Montagnes, La. Bar No. 33287 (Lead Counsel) Elizabeth Compa, La. Bar No. 35004 The Promise of Justice Initiative 636 Baronne Street New Orleans, LA 70113 Tel. (504) 529-5955 Fax (504) 558-0378 Email: mmontagnes@thejusticecenter.org
Mitchell A. Kamin, Ca. Bar No. 202788 Jessica C. Kornberg, Ca. Bar No. 264490 Nilay U. Vora, Ca. Bar No. 268339 Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067-2561 Tel. (310) 201- 2100 Fax (310) 201- 2110
Steven Scheckman, La. Bar No. 08472 Schiff, Scheckman, & White LLP 829 Baronne Street New Orleans, Louisiana 70113 Tel. (504)581-9322 Fax (504)581-7651 Email: steve@sswethicslaw.com
CERTIFICATE OF SERVICE
I do hereby certify that on Nov. 20, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send a notice of electronic filing to all CM/ECF participants.
/s/ Mercedes Montagnes MERCEDES MONTAGNES, LSBA #33287 Attorney at Law 636 Baronne Street New Orleans, LA 70113 (504) 529-5955
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, NATHANIEL CODE, AND JAMES MAGEE,
PLAINTIFFS
VS.
JAMES M. LEBLANC, SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, BURL CAIN, WARDEN OF THE LOUISIANA STATE PENITENTIARY, ANGELIA NORWOOD, WARDEN OF DEATH ROW, AND THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
DEFENDANTS

* CIVIL ACTION NO. 13-368 * * * * * * * JUDGE: BAJ * * * * MAGISTRATE: SCR * * * * * *

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO SET ATTORNEYS’ FEES AND COSTS REGARDING MAINTENANCE OF THE STATUS QUO
NOW INTO COURT COME PLAINTIFFS Elzie Ball, Nathaniel Code, and James Magee, through undersigned counsel, to provide a memorandum in support of Plaintiff’s Motion to Set Attorneys’ Fees and Costs Regarding Maintenance of the Status Quo, pursuant to this Court’s Order (Rec. Doc. 214). Plaintiffs state as follows:
I. BACKGROUND Plaintiffs described the facts giving rise to their Motion to Maintain the Status Quo (the
“Motion”) (Rec. Doc. 203) in their Memorandum in Support of that motion (Rec. Doc. 203-1 at 2-4), detailing how they were made aware that the mercury thermometers on the Death Row tiers had been removed; replaced with digital thermometers with no read-out; and subsequently

1

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reaffixed. This Motion was filed on October 16, 2014. Defendants filed a Memorandum in Opposition the same day (Rec. Doc. 205). Plaintiffs filed a Motion for Leave to file Reply (Rec. Doc. 206) on October 21, 2014, and the Reply was entered into the Record on October 23, 2014 (Rec. Doc. 210). At the same time, on Oct. 22, 2014, this Court ordered oral argument on the Motion, scheduled for Oct. 28, 2014 (Rec. Doc. 207). Defendants filed a motion to have Warden Cain testify at the hearing (Rec. Doc. 208) but the motion was denied (Rec. Doc. 212).
At the hearing on October 28, 2014, the parties presented their arguments regarding the Motion. This Court granted the Motion from the bench (see Rec. Doc. 213). The Court also granted Plaintiffs’ request for reasonable attorneys’ fees and costs associated with the Motion (Rec. Docs. 213-14).
Following the hearing, on November 11, 2014, Special Master Hebert and the parties conducted a visit to Death Row so that Special Master Hebert could familiarize himself with the characteristics of the facility as they relate to this litigation.
II. ARGUMENT a. Attorneys’ Fees i. The Court granted Plaintiffs’ Motion to Maintain the Status Quo and awarded fees.
For purposes of attorneys’ fees associated with the Motion to Maintain the Status Quo, Plaintiffs prevailed (Rec. Doc. 214 at 1). The Court awarded Plaintiffs fees and costs associated with the Motions for Sanctions and ordered Plaintiffs to file their motion for attorneys’ fees and costs no later than November 21, 2014. (Rec. Doc. 214 at 1-2, “IT IS FURTHER ORDERED that Plaintiffs’ request for reasonable attorneys’ fees and costs associated with the instant motion is GRANTED. . . .”)
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ii. The Court has inherent authority to impose fees in this instance. Where a party has violated the duty to preserve evidence in pending litigation, the Court can impose sanctions – including the award of attorneys’ fees – under its inherent authority. See Chambers v. NASCO, 501 U.S. 32, 43-46 (1991) (discussing the court’s inherent power, its scope, the imposition of fees as a sanction, and the role of bad faith); Batson v. Neal Spelce Assoc., 805 F.2d 546, 550-51 (5th Cir. 1986) (discussing bad faith, punitive purpose of fee shifting, and abuse of judicial process, and concluding that sanction was imposed not under Fed. R. Civ. P. 37 but rather the district court’s inherent powers); Allstate Ins. v. Mader, 201 F.Appx. 261, 265 (5th Cir. 2006) (stating that the court should sanction based on a Rule where one is applicable, but in the absence of that, the court can use inherent powers); Union Pump v. Centrifugal Tech., 404 F.Appx. 899, 905-06 (5th Cir. 2010) (stating that spoliation is punishable by sanctions under the court’s inherent powers and that spoliation is a serious offense).1 The actions of Defendants in altering the Death Row thermometers were taken in bad faith. Where the Court imposes sanctions based on its inherent authority, a finding of bad faith is required. See Chambers at 45-46; Batson at 550; Allstate at 265. Here, Defendants had already been sanctioned by the Court for altering the conditions on the Death Row tiers (Rec. Doc. 88). The Court had previously made clear to the parties that spoliation includes the failure to preserve property for litigation (Transcript, Aug. 5, 2013, at 50:2-7) (“BY THE COURT: . . . It’s clear that spoliation is not just the destruction [or] the significant alteration of the evidence. . . . But,
1 The Court has authority to impose sanctions under Fed. R. Civ. P. 37 for violations of the rules governing discovery. See, e.g., Rec. Doc. 88 (imposing sanctions on Defendants for discovery violations including spoliation of evidence). Here, the parties are no longer in discovery so Rule 37 does not appear to be the applicable basis for sanctions. Rather, the Court has authority to impose sanctions in this instance based on its inherent authority.
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also, the failure to preserve property so that it can be valid for use at trial.”).2 Defendants’ motion, following the trial, to remove the awnings they had erected on two tiers indicated their apparent understanding that any modifications to the tiers should only be undertaken with the Court’s awareness and approval (Rec. Doc. 79). To remove the existing mercury thermometers from the tiers, given this extensive history with regard to spoliation in this matter, and then to refuse to give assurances to Plaintiffs that counsel have advised their clients about their common law duty to preserve evidence demonstrates bad faith on the part of Defendants.
iii. Plaintiffs’ fee request comports with the calculation of permissible fees. 1. The lodestar amount.
Reasonable attorneys’ fees are the product of the hours reasonably expended multiplied by the applicable hourly rate for the legal services, known as the “lodestar amount.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A reasonable hourly rate is based on the prevailing market rates in the community for attorneys of comparable skill, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 895 (1984). The Fifth Circuit has stated that, generally, the “relevant market for purposes of determining the prevailing rate to be paid in a fee award is the community in which the district court sits[.]” Scham v. District Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998); Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002).
A. Hourly rates requested are reasonable. Plaintiffs incorporate by reference their arguments regarding the current market rates for local and out-of-district counsel, as well as the necessity for out-of-district counsel in this matter, in their main fees motion (see Rec. Doc. 187-1 at 8-11) and their motion for attorneys’ fees
2 The Court subsequently cautioned that a future failure by counsel to abide by the rules, including the duty of candor, would not be looked on leniently. (Show Cause Hearing Transcript, Mar. 12, 2014, at 53:6-17.)
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regarding Rule 37 Sanctions (see Rec. Doc. 104-1 at 11-15). In this fee motion, out-of-district rates are only a factor as to time expended by Mr. Vora, as discussed infra.
In support of these arguments, Plaintiffs incorporate by reference the declarations submitted with their principal fee motion in this matter, from attorneys in practicing within the markets of both local and out-of-district counsel, attesting that the rates requested by the attorneys are reasonable. See Rec. Doc. 187-8 (Declaration of Katie Schwartzmann), Rec. Doc. 187-9 (Declaration of Mary E. Howell), Rec. Doc. 187-10 (Declaration of Justin Harrison), Rec. Doc. 187-11 (Declaration of Steven Schulman), Rec. Doc. 187-12 (Declaration of David Lash). Plaintiffs also incorporate by reference the comparable declarations submitted in the sanctions fee motion. See Rec. Doc. 104-16 (Declaration of Mary E. Howell), Rec. Doc. 104-17 (Declaration of Katie Schwartzmann), Rec. Doc. 104-18 (Declaration of Justin Harrison), Rec. Doc. 104-20 (Declaration of Steven Schulman), Rec. Doc. 104-21 (Declaration of David Lash).
B. Hours requested are reasonable. A full compensatory fee “will encompass all hours reasonably expended on the litigation.” Hensley v. Eckerhart, 461 U.S. at 435. Reasonably expended hours may be measured by the litmus test of what could reasonably be billed to a paying client. Id. at 433. In turn, the determination of reasonableness looks at “the profession’s judgment of the time that may be conscionably billed and not the least time in which it might theoretically have been done.” Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1306 (11th Cir. 1998). All hours expended as to the motion for status quo in this matter were necessary and compensable, as discussed infra.
i. Time spent investigating the alterations of the thermometers
As discussed in the attached affidavits, counsel for Plaintiffs expended initial hours
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investigating received reports of alterations to the thermometers. Ex. A (Montagnes affidavit), Ex. C (Compa affidavit), Ex. E (Vora affidavit); see also Ex. B (Montagnes time entries), Ex. D (Compa time entries), Ex. F (Vora time entries). This included discussions with clients and other sources, and subsequent correspondence with Defendants’ counsel by email. Id. Counsel for Plaintiffs also spent time researching the duty to preserve evidence and conferred internally about how to address the matter. Id. All six attorneys comprising Plaintiffs’ counsel were involved in this phase, but in the exercise of billing judgment counsel seek fees only for the time expended by Ms. Montagnes, Ms. Compa, and Mr. Vora.
ii. Time spent on the Motions and Hearing As the attached affidavits discuss, Ms. Montagnes, Ms. Compa, and Mr. Vora conducted research and prepared the motion to maintain the status quo, read Defendants’ Opposition, and researched and prepared the Reply. Ex. A-F. Following the Court’s order for oral argument, counsel prepared for and attended the hearing. Id. This work included preparing to crossexamine Warden Cain in light of Defendants’ motion to have him testify, made October 23, 2014 (Rec. Doc. 208). This request was pending until the morning of October 28, 2014 (Rec. Doc. 212) (denying Defendants’ motion).
iii. Time spent visiting Death Row with the Special Master
Following the hearing on the motion to maintain the status quo, Special Master Hebert contacted the parties to ask that counsel accompany him on a visit to the Death Row facility so that he could observe the current mechanical set-up and familiarize himself with the facility in its current state. This visit was conducted on November 11, 2014. Ms. Montagnes and Ms. Compa attended on behalf of the Plaintiffs. Ex. A, Ex. C; see also Ex. B, Ex. D.
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iv. Time spent on this fees motion Upon granting Plaintiffs’ motion to maintain the status quo, the Court also ordered Plaintiffs to submit a motion for attorneys’ fees. Counsel have expended several hours preparing this fee motion, as the attached affidavits detail. Ex. A-F. As discussed in Plaintiffs’ principal Motion for Attorneys’ Fees (Rec. Doc. 187) as well as their motion for fees related to sanctions (Rec. Doc. 104), counsel are entitled to fees for time spent preparing the fees motion. See Rec. Doc. 187-1 at 16 (discussing the policy considerations underlying the award of so-called fees-onfees); Rec. Doc. 104-1 at 17-18 (same). See also Norelus v. Denny’s, Inc., 628 F.3d 1270, 12981299 (11th Cir. 2010) (stating that excluding from a sanctions award the costs incurred in obtaining it would undercut the purposes of providing for sanctions, including the goal of deterrence).
2. Counsel exercised appropriate billing judgment. In the exercise of billing judgment, Plaintiffs do not seek to recover fees for the limited time expended by Ms. Kornberg, Mr. Kamin, and Mr. Scheckman on this topic. While those lawyers were involved in email communications and phone calls regarding the issue, they did not expend significant time on the correspondence, motions, or hearing discussed supra. As discussed in the attached affidavits, Ms. Montagnes, Ms. Compa, and Mr. Vora have, in the exercise of billing judgment, factored in a global reduction of at least 20% to the time for which fees are sought as compared with the total expended on the motion for status quo as reflected in their timesheet entries. Ex. A-F. The time that Plaintiffs’ counsel devoted to the status quo motion in this litigation is discrete and identifiable, as reflected in the attached affidavits by counsel. Counsel has carefully documented the time directly and reasonably incurred in this regard, and has made “a good faith
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effort to exclude . . . hours that are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. The exercise of billing judgment is reflected in the affidavits and incorporated timesheets of Ms. Montagnes, Ms. Compa, and Mr. Vora. Ex. A-F. See Harkless v. Sweeny Indep. Sch. Dist., Sweeny, Tex., 608 F.2d 594, 597 (5th Cir. 1979) (stating that keeping timesheets is a good practice for attorneys and helpful to determining fees).
Because the matter of maintaining the status quo unfolded over a period of only several weeks since the time Plaintiffs were made aware of the change in thermometers, Plaintiffs’ counsel have not devoted an objectively large number of hours to this question. The hours that were spent, however, were necessary and efficiently allocated.
iv. The PLRA cap does not limit the Court’s ability to award fees. Plaintiffs incorporate by reference their argument in the motion for attorneys’ fees as to sanctions (Rec. Doc. 104) regarding the inapplicability of the PLRA rate cap in the context of sanctions fees. See Rec. Doc. 104-1 at 25-27. This fee motion is not made under 42 U.S.C. § 1988, but rather under the Court’s inherent authority. Since the PLRA cap is meant to address the recovery of attorneys’ fees in successful litigation and not govern the sanctioning of defendants, the PLRA cap should not apply to the instant fee motion. See Edwin G. v. Washington, 2001 WL 196760 (C.D.Ill., Jan. 26, 2001) (holding that fees sought as discovery sanctions were not subject to PLRA); Aaron Fillmore, v. Thomas F. Page, et al., Civil No. 97844-CJP, (S.D. Ill., 1998) (fees on motion for discovery sanction were not capped by PLRA because fees were not sought under § 1988). Because this is the second separate instance of Defendants’ spoliation of evidence, coming more than a year after the first instance (see Rec. Doc. 88), the deterrent purpose of the imposition of sanctions is of even greater importance. See Chambers at 56 (discussing intended
8

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deterrent effect of sanctions); see also United States v. 49,000 Currency, 330 F.3d 371, 376 (5th

Cir. 2003) (discussing the desired deterrent effect of sanctions in the context of Rule 37).

Accordingly, it would be entirely reasonable for the Court to award Plaintiffs their full market

rate in the present fees matter.

v. Counsel employed a reasonable and efficient division of labor.

Attorneys Ms. Montagnes, Ms. Compa, and Mr. Vora made concerted efforts to

efficiently divide the work related to the motion to maintain the status quo in order to avoid

repetition or any unnecessary time expended. The attached attorney affidavits and timesheets

discuss the specific tasks performed by each attorney. Ex. A-F.

vi. Summary of fees related to the motion to maintain the status quo:

Attorney Mercedes Montagnes Elizabeth Compa Nilay Vora TOTAL

Hours (incl. >20% reduction) 33.0 35.2 6.24

Hourly rate $225.00 $200.00 $350.00

Total $7,425.00 $7,040.00 $2,184.00 $16,649.00

b. Costs

Counsel seek costs for travel to and from Baton Rouge for the hearing on the Motion to

Maintain the Status Quo on October 28, 2014, as well as travel to and from Angola for the visit

to Death Row with Special Master Hebert on November 11, 2014. As the attached

documentation shows, the roundtrip mileage to the Federal Court for the Middle District of

Louisiana from the office of the Promise of Justice Initiative (“PJI”) in New Orleans is 162

miles. Ex. G (roundtrip mileage from PJI office to M.D.La. courthouse). The roundtrip mileage

to the Louisiana State Penitentiary at Angola from the PJI office is 272 miles. Ex. H (roundtrip

mileage from PJI office to Angola prison). The current witness and juror mileage reimbursement

rate for the Middle District of Louisiana is $0.56 per mile. Fee Schedule, Fees of the U.S.

9

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District Court (Dec. 1, 2013), available at www.lamd.uscourts.gov/fee-schedule. For the total 434 miles traveled in connection with the motion for status quo, the cost at the current M.D.La. witness and juror mileage rate is $243.04.
Although counsel also expended resources printing documents and preparing binders in preparation for the hearing on the motion for status quo, counsel only seek cost reimbursement as to the travel costs described supra.
III. CONCLUSION For the foregoing reasons, Plaintiffs hereby respectfully request that the Court award
attorneys’ fees and costs in this matter as to sanctions at $16,649.00 in fees and $243.04 in costs.

Date: Nov. 20, 2014

Respectfully submitted,
/s/ Mercedes Montagnes Mercedes Montagnes, La. Bar No. 33287 (Lead Counsel) Elizabeth Compa, La. Bar No. 35004 The Promise of Justice Initiative 636 Baronne Street New Orleans, LA 70113 Tel. (504) 529-5955 Fax (504) 558-0378 Email: mmontagnes@thejusticecenter.org
Mitchell A. Kamin, Ca. Bar No. 202788 Jessica C. Kornberg, Ca. Bar No. 264490 Nilay U. Vora, Ca. Bar No. 268339 Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. 1875 Century Park East, 23rd Floor Los Angeles, California 90067-2561 Tel. (310) 201-2100 Fax (310) 201-2110
Steven Scheckman, La. Bar No. 08472 Schiff, Scheckman, & White LLP 829 Baronne Street

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Case 3:13-cv-00368-BAJ-EWD Document 216-1 11/20/14 Page 11 of 11
New Orleans, Louisiana 70113 Tel. (504) 581-9322 Fax (504) 581-7651 Email: steve@sswethicslaw.com
CERTIFICATE OF SERVICE I do hereby certify that on Nov. 20, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send a notice of electronic filing to all CM/ECF participants.
/s/ Mercedes Montagnes MERCEDES MONTAGNES, LSBA #33287 Attorney at Law 636 Baronne Street New Orleans, LA 70113 (504) 529-5955
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Case 3:13-cv-00368-BAJ-EWD Document 216-3 11/20/14 Page 1 of 1

Project Correspondence

Description

Date

Duration Tags

various communication re: removal of digital

thermometers

9/29/2014 1:47:00 Heat

Correspondence correspondence re: digital thermometers

10/1/2014 3:45:00 Heat

Correspondence call with client and f/u re: thermometers

Research / Writing

(Federal)

draft and review motion re: status quo

Research / Writing

(Federal)

research duty to preserve

Research / Writing

(Federal)

research duty to preserve

review and file pleadings- motion for exp.

Research / Writing review (22 mins) and motion for status quo (1

(Federal)

hr)

Research / Writing read and review defendants opposition re:

(Federal)

status quo

Research / Writing review draft of reply to motion for status quo

(Federal)

and research caselaw

Research / Writing call with GBC re: oral argument and outlining

(Federal)

of prep

Draft and send reply to opposing counsel re

Correspondence Cain testimony

Research / Writing

(Federal)

review filings and review jurisdiction caselaw.

Court Prep Time

(Federal)

complete hearing prep

Court Prep Time

(Federal)

hearing prep

Court Prep Time

(Federal)

hearing prep re: relief, review judges order

Court Time

(Federal)

Travel and attend hearing

Correspondence call with grant re: data

10/1/2014 0:43:00 Heat 10/15/2014 3:33:00 Heat 10/16/2014 1:00:00 Heat 10/16/2014 0:46:00 Heat
10/16/2014 1:00:00 Heat 10/17/2014 1:30:00 Heat 10/21/2014 2:29:00 Heat 10/22/2014 2:19:00 Heat 10/22/2014 0:51:00 Heat 10/27/2014 2:30:00 Heat 10/27/2014 4:08:00 Heat 10/27/2014 0:45:00 Heat 10/28/2014 1:28:00 Heat 10/28/2014 6:41:00 Heat 10/29/2014 0:05:00 Heat

Court Time

Special Master visit to DR (incl. travel, meal)

Research / Writing

(Federal)

review fee motion draft

Research / Writing

(Federal)

review affidavit and draft

TOTAL

11/11/2014 8:35:00 Heat
11/12/2014 0:27:00 Heat
11/18/2014 0:32:00 Heat 44:54:00

Case 3:13-cv-00368-BAJ-EWD Document 216-4 11/20/14 Page 1 of 3

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Project Correspondence Correspondence Correspondence Correspondence Correspondence Correspondence Correspondence
Case Meeting
Research/writing Research/writing Research/writing
Case Meeting
Correspondence

Description Emails re Thermometer issue Emails re Thermometer issue Emails re Thermometer issue Emails re Thermometer issue Emails re Thermometer issue Email re Thermometer issue Email re Thermometer issue Meet with MM re motions to maintain status quo, expedite consideration Prepare motions to maintain status quo, expedite consideration [PARTIAL] Prepare motion to maintain status quo Circulate status quo motion to team Meet with MM re motions to maintain status quo, expedite consideration [PARTIAL] Emails re motions to maintain status quo, expedite consideration [PARTIAL]

Date

Duration SQ Time

9/29/2014 0:10:00 0:10:00

10/1/2014 0:10:00 0:10:00

10/2/2014 0:05:00 0:05:00

10/3/2014 0:10:00 0:10:00

10/6/2014 0:05:00 0:05:00

10/7/2014 0:02:30 0:02:30

10/8/2014 0:10:30 0:10:30

10/15/2014 0:10:00 0:10:00

10/15/2014 10/15/2014 10/15/2014

1:02:57 3:34:58 0:06:00

0:45:00 3:34:58 0:06:00

10/16/2014 0:15:00 0:07:30

10/16/2014 0:05:00 0:02:30

Finalize motions to maintain status quo, expedite Research/writing consideration and prep proposed orders [PARTIAL] 10/16/2014 0:25:42 0:15:00

Research/writing Case Meeting Research/writing Research/writing Research/writing Research/writing

File motions to maintain status quo, expedite consideration and prep proposed orders [PARTIAL] Meet with MM re status quo reply Prepare status quo reply Prepare status quo reply Prepare status quo reply Status quo reply- final revise and file

10/16/2014 10/17/2014 10/17/2014 10/20/2014 10/21/2014 10/21/2014

0:16:51 0:15:00 1:39:53 1:39:29 2:02:59 0:38:41

0:09:00 0:15:00 1:39:53 1:39:29 2:02:59 0:38:41

Case Meeting Research/writing Obtain or Review Court Record Court Prep Time

Emails re Tuesday hearing and discussion with MM 10/22/2014

Status quo hearing prep

10/22/2014

Review and discuss motion for Cain testify Meet with MM re hearing

10/23/2014 10/27/2014

0:20:00 1:12:28
0:25:00 0:40:09

0:20:00 1:12:28
0:25:00 0:40:09

Research/writing
Research/writing Court Prep Time
Research/writing Court Prep Time Court Time
Research/writing Research/writing

Case cites re court's inherent sanction authority Case cites/review of treatise re court's inherent sanction authority Meet with MM re hearing Case cites/review of treatise re court's inherent sanction authority Meet with MM re hearing Hearing re status quo motion (incl. travel) Prepare motion to affix date re status quo fees/email to o/s re opp [OMIT] Prepare motion for attys fees re Status Quo

10/27/2014 0:22:58 0:22:58

10/27/2014 2:00:00 2:00:00 10/27/2014 0:33:32 0:33:32

10/27/2014 10/28/2014 10/28/2014

0:32:00 0:10:00 6:39:15

0:32:00 0:10:00 6:39:15

10/31/2014 0:31:45 0:00:00 11/5/2014 0:30:39 0:30:39

Case 3:13-cv-00368-BAJ-EWD Document 216-5 11/20/14 Page 2 of 2

Research/writing Correspondence Court Time Correspondence Research/writing Case Meeting

Prepare motion for attys fees re Status Quo Thermometer/digital data emails review Special Master visit to DR (incl. travel, meal) Email to team re SM visit Prepare motion for attys fees re Status Quo Review fees time/current draft

Research/writing Research/writing Research/writing Research/writing Research/writing

Research for motion for attys fees re Status Quo Prepare motion for attys fees re Status Quo Prepare motion for attys fees re Status Quo Prepare motion for attys fees re Status Quo Prepare motion for attys fees re Status Quo

TOTAL

11/5/2014 11/6/2014 11/11/2014 11/11/2014 11/11/2014 11/12/2014

0:25:29 0:07:40 8:35:00 0:31:53 0:57:54 0:32:00

0:25:29 0:07:40 8:35:00 0:31:53 0:57:54 0:32:00

11/13/2014 11/13/2014 11/16/2014 11/17/2014 11/18/2014

2:04:10 0:25:19 0:45:00 1:35:56 2:20:20

2:04:10 0:25:19 0:45:00 1:35:56 2:20:20

44:05:42

Case 3:13-cv-00368-BAJ-EWD Document 216-6 11/20/14 Page 1 of 3

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZTE BALL, NATHANIEL CODE, AND JAMES MAGE,E,
Plaintiffs,
VS

CNIL ACTION NO. 13-368
JUDGE: BAJ MAGISTRATE: SCR

Penitentiarv; ANGELA NORV/OOD, Warden ofDeath Row; and THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
Defendants.

AFFIDAVIT OF NILAY U. VORA
NILAY U. VORA declares, pursuant to 28 U.S.C. ç 1746 and under penalty
of perjury, as follows:
1. I incorporate previously filed afflrdavits in this matter with respect to
attomeys' fees (Rec. Doc. 104-14 &' 187-13).
2. I am an attorney with the law firm of Bird, Marella, Boxer, 'Wolpert,
Nessim, Drooks, Lincenberg & Rhow, P.C. in Los Angeles, California.
3. I have been a member of the California Bar since December 2009.
I am also admitted to appear before the Central District of California, and the United States Fifth Circuit Court of Appeals and Ninth Circuit Court of Appeals.
4. I have helped carry out all aspects of litigation on this action under lead
counsel Mercedes Montagnes, My role began in or about May 2013.
5. This affidavit discusses my time expended as to alterations to the death

31281 80.2

AFFIDAVIT OF NILAY U. VORA

Case 3:13-cv-00368-BAJ-EWD Document 216-6 11/20/14 Page 2 of 3

row thermometers in September and October 2014, and Plaintiffs' related motion to

maintain the status quo.
6. The attached billing entries constitute a summary of the

contemporaneous log of the time I keep and accurately reflects the time I expended

on the motion to maintain the status quo.

. 7

On or about September 29,2014, co-counsel received reports that

mercury and glass thermometers had removed from death row.
8. After we verified that this was true, co-counsel attempted to negotiate

with the Defendants to ensure there would be no more material alterations to death

row.
9. The Defendants refused to provide us with assurances of their intention

to maintain the status quo for the pendency of this litigation.
10. I consulted with my co-counsel about our negotiation of a potential

agreement to resolve the issue and avoid motion practice on the issue.
.1 1 In the initial investigation of reports of alterations to the thermometers
and related correspondence with Defendants, my role was limited to keeping

apprised of the developments and consulting with the rest of my co-counsel as to

how to respond.
12. We filed a Motion to Maintain the Status Quo (Rec. Doc. 203), as well
as a Reply and a motion for leave to fìle the same (Rec. Docs. 206,206-l).
13. I conducted research and writing on both filings. 14. On October 28,2014, this Court held oral argument on this motion and

orally granted Plaintiffs' motion.
15. I assisted lead counsel Mercedes Montagnes in preparing for that oral

argument and hearing.
16. On October 31 ,2014, this Court entered an order granting attorneys'
fees for the work completed on this motion (Rec. Doc. 214).
I7. I assisted in the preparation and writing of the instant motion for

3128t80.2

AFFIDAVIT OF NILAY U. VORA

Case 3:13-cv-00368-BAJ-EWD Document 216-6 11/20/14 Page 3 of 3
attorneys' fees.
18. In litigating this matter, I spent 7.8 hours. However, in an exercise of
billing judgment I have deducted 20Yo of my time and request here that the Court award fees for 6.24hours of time.
19. I believe that a fair rnarket rate for my hours in this case is $350 per
hour, based upon my level of experience and skill, as well as the market rate for attorneys of comparable skill and experience in the Los Angeles, California, area.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on November 19,2014

Nilay U. Vora

STATE OF CALIFORNIA COUNTY OF LOS ANGELES

Subscribed November.2014.

bavndNsilawyoUrn

evidence to be thê trierson-wh

WENOY S. NABONSAL
* commission 1970721
ilotary Publlc - California

Los Angeles County

Comm. Ex

Mar 25 20r 6

) ) )
before me on the 19th day of
o me on the basis of satisfactory
re me.
(Seal)

3 128 180.2

Si
aJ AFFIDAVIT OFNILAY U. VORA

Case 3:13-cv-00368-BAJ-EWD Document 216-7 11/20/14 Page 1 of 1
NUV October 2014 Time for Angola: Death Row Heat Litigation

Date

Time

10/1/14 0.2

10/6/14 0.3 10/6/14 0.5

10/7/14 0.6

10/8/14 0.5 10/8/14 0.3 10/8/14 0.1 10/13/14 0.1 10/13/14 0.3 10/15/14 0.7
10/15/14 0.3 10/17/14 0.2 10/20/14 0.2 10/20/14 0.1 10/22/14 0.5
10/27/14 0.4
10/28/14 0.4
10/30/14 0.1 11/12/14 1.0
11/17/14 1.0
7.8

Description Email and telephone conference with M. Montagnes re alterations to prison facility and strategy for dealing with same Review correspondence re special master issues Email with M. Montagnes re reports of changes to thermometers and need for motion to preserve evidence and maintain status quo Email and telephone conference with B. Compa and M. Montagnes re Defendants’ alterations to physical structures and thermometers in death row facilities Legal research re motion to maintain status quo Email with M. Montagnes re strategy to maintain status quo Email with opposing counsel re maintenance of evidence and status quo Email with M. Montagnes re strategy to maintain status quo Legal research re jurisdictional issues re maintaining status quo Email and telephone conference with B. Compa and M. Montagnes re motion to maintain status quo Review and revise motion to maintain status quo Email with B. Compa re reply brief re motion to maintain status quo Review and revise reply brief re preservation of evidence Email with B. Compa re reply brief Review Order re hearing on motion to maintain status quo; email with co-counsel re same and defendants’ request for live testimony at hearing Telephone conference with M. Montagnes re strategy for hearing re motion to maintain status quo Telephone conference with M. Montagnes and B. Compa re hearing re motion to maintain status quo Review court order re motion to maintain status quo Prepare motion for attorneys’ fees re motion for maintenance of status quo and review, summarize, and tabulate time entries re same. Review and revise motion for attorneys' fees re motion for maintenance of status quo and legal research re same (.7); prepare affidavit re same (.3). TOTAL

3128193.1

Case 3:13-cv-00368-BAJ-EWD Document 216-8 11/20/14 Page 1 of 4

Case 3:13-cv-00368-BAJ-EWD Document 216-8 11/20/14 Page 2 of 4

Case 3:13-cv-00368-BAJ-EWD Document 216-8 11/20/14 Page 3 of 4

Case 3:13-cv-00368-BAJ-EWD Document 216-8 11/20/14 Page 4 of 4

Case 3:13-cv-00368-BAJ-EWD Document 216-9 11/20/14 Page 1 of 4

Case 3:13-cv-00368-BAJ-EWD Document 216-9 11/20/14 Page 2 of 4

Case 3:13-cv-00368-BAJ-EWD Document 216-9 11/20/14 Page 3 of 4

Case 3:13-cv-00368-BAJ-EWD Document 216-9 11/20/14 Page 4 of 4

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION N0.:13-00368-BAJ-S CR

RULING AND ORDER
Before the Co urt is P la intiffs' Motion t o S et Attorn eys' Fees and Cost s R egarding Ma intenance of t he Status Quo (Doc. 216) filed b y E lzie Ball, Nath a ni el Code, a nd J a m es Magee (collectively, "Plaintiffs"), seeking an order from this Court awarding attorneys· fees and costs in the amount of $16,892.04. The motion is filed in accordance with this Court's Ruling and Order granting Plaintiffs' Motion to Maintain th e Status Quo of October 30, 2014. (Doc. 214). Defendants James M. Lebla nc, Secretary of Louisiana Department of Public Safety and Corrections, Burl Cain, Warden of the Louisiana State Penitentiary ("Angola"), Angela Norwood, t he Warde n of Death Row, a nd the Louisiana Department of Public Safety and Corrections (collectively, "Defenda nts") oppose the award as unreasonable. (Doc. 218). I. Background
On June 10, 2013, Plaintiffs filed a Complaint against Defendants for civil rights abuses surrounding the conditions of confinement on the Angola death r ow tier . (Doc. 1 at 11 1). More specifically, Plaintiffs claimed violations of t heir Eigh t h

and Fourteenth Amendment rights and violations of the Americans with Disabilities Act ("ADA") for da n gerous heat levels in Angola's Death Row. (Doc. 1 at
,,,11-2). On Au gust 5, 2013, the matter came before t he Court on a non-jury trial on
t he merits. (Docs. 76, 77). On December 29, 2013, the Court issued a Ruling a nd Order , finding in favor of Plaintiffs and ordering Defendants to "monitor, r ecord, and report the temperature, humidity, and the heat index in each of the death row tiers .. .." (Doc. 87 at p. 95).
During discovery, Plaintiffs claimed Defendants acte d to intentionally "undermine the accuracy .. . of court-ordered collection related to the temperature, humidity, a nd h eat index in Angola's death row tiers, a nd t hus should be sanctioned for spoliation of evidence" because Defenda nts installed awnings over t he windows of death row tiers, employed "soaker hoses" to "mist the walls" of cer tain t iers, and attemp ted unsuccessfully to develop a sprinkler syste m to wet the roof .and yard of the prison. (Doc. 88 at pp. 3, 7-8). The Court had "little trouble determining that Defendants' construction of aw ning and installation of soaker hoses exhibited 'bad faith ."' (Doc. 88 a t p. 33-34). The Court reasoned th a t "it [was] ab undantly clear th at Defenda n ts' manipulations occurred after t his Court ordered th at the most accurate data . . . be collected" and the specific intention for installing the awnings and soaker hoses was to manipulate t he very data t hat t hey conceded t hey were obligated to preserve. (Doc. 88 at p. 34) (internal quotations omitted). The CouTt concluded Defendants' deliber ate breach of their du ty to maintain the status quo
2

satisfied t he ba d fa it h standar d a nd sanctioned Defenda nts under t he Court's inherent power. (Doc. 88 at p . 49).
While t he appeal of t his Court's r ulin g on the merits was pe nding before t he United States Court of Appeals fo r the Fift h Circuit, Defenda nts removed t he mercury th ermometer s which h ad bee n used to measure t he temperature for the duration of t he case a nd replaced t hem with digital thermometers. (Doc. 203-1 at p . 2). Defenda nts performed t his ma nip ula tion of evide nce on t h eir own init iative without notifYing either the Court or the Special Master. (See Doc. 213 at pp. 1-2). Nevert heless, Defe nda nts justified their actions by fervently advocating t he superiority of the new digital thermometer "upgrade." In so doing, Defenda nts failed to acknowledge th at t he Court's Order mandated mainten an ce of t he status quo. To be clear, a ny a lteration of the heat measuring instruments, including a lleged imp rovements, directly violated t he Court's unequivocal order. (See Doc. 213 at pp. 1-2). Defe nda nts later re mounted t he original mercury t her mometers. (Doc. 203-1 at p. 4).
At the hearing held on October 29, 2014, the Court fo und Defe nda nts' remova l of th e mercury thermometers after being put on notice to main tain the status quo by previous sanctions constituted a bad faith violation of t his Court 's Order. (Doc. 213 at pp. 1-2; Doc. 214 at pp . 1-2). Using no uncer tain terms, t he Cour t ordered Defenda nts to maintain the status quo. The Court then gran ted Pla intiffs' request for reasona ble attorneys' fees a nd costs associated with the
3

motion. (Docs. 313, 214). The Court then ordered Plaintiffs to file a motion detailing the fe es and costs reason ably incuncd. (Doc. 214 at p. 2).
In response, Plaintiffs filed a request for $16,649.00 in fees a nd $243.04 in costs. (Doc. 216). The fees included work performed by the following three attorneys: Mercedes Montagnes ("Montagnes"), Elizabeth Co ropa ("Compa"), and Nilay U. Vora ("Vora"). (Doc. 216- 1 at p. 6). Each attorney set hisfher own rate using th e prevailing market rate for his/her respective ma rkets. Specifically, Montagnes and Compa used the prevailing market rate for New Orleans at $225 per h our and $200 per hour respectively, and Vora used the prevailing ma rket rate for Los Angeles at $350 per h our. (Doc. 216-1 at p. 9). Together , Plaintiffs claim a total of approximately ninety-seven hours. Plaintiffs also factored in a 20% globa l reduction for a total of approximately seve nty-five a nd one ha lf hours. (Doc. 216-1 at p. 7). The services for these hours fa ll into four broad categories: (1) discovering and investigating the replaced thermometers, (2) research a nd preparation fo r t he motion and hearin g held October 28, 2014, (3) travel to Angola with t he Special Master ,l and (4) setting a nd justifying a ttorney fees for the motion currently before the Court. (Doc. 216-1 at p. 9).
1 'fravel costs were calculated us ing t he current witness and juror mileage reimbursement rate for the Middle District of Louisiana, S0.56 per mile. Plaintiffs cite Fee Schedule, Fees of the U.S. District Court (Dec. 1, 2013) available at www.lamd.uscoUl·ts.gov/fee-schedule. for justification of t his rate. Plaintiffs claim 434 miles traveled, totaling S243.04 in costs (Doc. 216-1 at pp. 9-10). Defendants do not contest the Court's power to award travel costs. the method of calculation. rate. or total requested; rather, Defendants only chaUenge that the rate be capped by the Prison Litigation Reform Act ("PLRA").
4

II. Discussion In Hensely u. Echerhart, 461 U.S. 424 (1983), t he United States Supreme
Court established a two-step system for calculating attorney fees, a lso called th e "lodestar" method. Id. at 433 (applying the lodestar amount for attorney's fees awarded under a § 1988 case). See Heidtman u. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) ("This Court uses the 'lodestar' method to calculate attorney fees."); Matter of Fender, 12 F .3d 480, 487 ("The Fifth Circuit uses the 'lodestar' method to calculate attorneys' fees."). See also Wagner u. Boh Bros. Canst. Co., LLC, 2012 WL 3637392 at *12 (E .D . La. Aug. 22, 20 12) (applying the lodestar a mount for attorney fees incurred as a result of opposing par ty's failure to comply wit h court orders, among other things) . Attorney fees are calculated by "det ermining . . . t he number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id.
Applying t his test, Plaintiffs' proposed award must be reduced for two reasons . First, the request does not employ a reasonable rate because Plaintiffs use t he prevailing market rate for their respective ma rkets, r ather th a n t he market in which the court sits. Second, not all of Plaintiffs' requested hours were reasonably spen t on th e litigation because the request includes a lunch with t he Special Master. Because of these errors, the Court will recalculate the reward in accordance with th e prevailing market rate for the Middle District of Louisiana and reduce t he total hours by the time spe nt at the meal.
5

A. Reasonable Attorney Rates Plaintiffs must first show that their rates are reasonable. Id. Reasonable rates are determined by the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984); United States v. City of Jacl?-son, Miss., 359 F.3d 727, 733 (5th Cir. 2004) (applying Blum to attorney fees awarded by district court sanctions). For purposes of determining the market rate, the relevant community is the "community in which the district court sits ." Scham v. Dist. Courts Trying Crim,inal Cases, 148 F.3d 554, 559 (5th Cir. 1998), abrogated on other grounds by Buckhannon Bd. and Care Honte, Inc. v. West Virginia Dep't of Health and Human Serv. , 532 U.S. 598, 610 (2001); see also Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002); McClain v. Lufhin Indus., Inc. , 649 F.3d 374, 381 (5th Cir. 2011). The prevailing market fee is generally determined by affidavits filed by attorneys practicing in the area. Tollett, 285 F.3d at 368. However, markets of comparable sizes can be informative in determining the prevailing market rate of another district. See e.g., Strogner v. Sturdivant, No. 10-125-JJB-CN, 2011 WL 6140670, at *2 n.4 (M.D. La. Dec. 9, 2011) (finding that the rate in New Orleans could help determine the rate in Baton Rouge because after Hurricane Katrina, the size of New Orleans a nd Baton Rouge became more comparable); Advocacy Center v. Cain, No. 12-508-BAJ-SCR, 2014 WL 1246840, at *7 n.6 (M.D. La. Mar. 24, 2014) (same). Furt her, courts have declined to adjust a proposed attorney rate when the other party fails to con test the rate's reasonability. Tollett, 285 F.3d at 368. In
6

Tollett u. City of Kemah, t he Fifth Circuit sa nctioned t he defendan t for violatin g
Rule 37 of t he Federal Rules of Civil Procedure by awarding t he plaint iffs
a ttorneys' fees. Id. at 369. In doing so, t he court allowed the plaintiff to rely solely
"upon his own assertion in his affidavit that his is a reasonable rate." Id. at 368.
Although the court questioned whether the plaintiffs rate of $300 was reasonable.
it ultim ately held the a mount reasonable based on Tollett's counsel's affidavit "only
because the [defe nda nts did] not contest [it]." Id.
Here, as in Tollett, Defe ndants do not question the reasona bleness of the
hourly rate. Id. Instead, Defendants argue that the hourly rate should be capped
by th e P rison Reform Litigation Act ("PLRA"). 2 (Doc. 218 at p. 3). Alth ou gh this
section of th e P LRA is "not a paragon of cla rity," Defend ants' ar gume nt is
nonetheless wit hou t merit. See Cody u. Hillard , 304 F.3d 767, 776 (8th Cir. 2002)
(quoting Inmates of Suffoll?. Cnty. Jail u. Rouse, 129 F.3d 649, 654 (1st CiT. 1997)).
The PRLA app lies to post-judgmen t awa rds issued u nder 42 U.S.C. § 1988. It
states in relevan t part:
In a ny action brought by a prisoner . . . in which attorney's fees are authorized under section 1988 of this title, such fees shall not be awar ded, except to t he extent that . . . t he fee was directly a nd reasona bly incurred in proving an actual violation of the plaintiffs righ ts protected by a statute pursuant to which a fee nwy be awarded under section 1988 of this title.
2 Defendants present case la w from the United States Court of Appeals for the Ninth Circuit arguing that fees awarded under con tempt and discovery sanctions are capped by t he PLRA presum a bly because the Fifth Circuit has yet to address whethe r the PLRA applies to sa nctions levied under a cow·t's inherent a u t hori ty. (Doc. 218 at pp. 3-4) (citing Webb u. Ada Cnty, 285 F.3d 829 (9th Cir. 2002)). However. as Defendants acknowledge, this Cow·t is not bound by Ninth Circuit preceden t. Moreover. the Cotu't find s the Webb case inapplicable here because Webb concerned sanctions for contempt and Rule 37 violations. not sanctions levied under a court's inhere nt a uthority.
7

42 U .S.C. § 1997e(d)(1)(A) (emphasis added); see Volh v. Gonzalez, 262 F.3d 528, 53 1-32 (5th Cir. 2001).
The current award of attorney fees is a sanction, iss ued under this Court's inhere nt authority as a result of Defendants' repeated, bad faith violations of this Court's direct order to maintain the status quo; therefore, th e PLRA is inapplicable. See Chambers v. Nasco, 501 U.S. 32, 43-46 (1991) (h olding courts h ave inherent authority to manage their own proceedings and finding that awarding attorney's fees is within t his power). As in Tollett, Defendants failed to challen ge t h e reasonability of Plaintiffs' rates, instead focusing on the incorrect assertion that Plaintiffs' rate should be capped by the PLRA. As a result, th e Court would be r easonable in accepting Plaintiffs' rate without further inquiry. See Tollet, 285 F.3d at 368.
However, the question of reasonability is ultimately a question for the district court to decide, a nd this Court is free to address Plaintiffs' rate on its own init iative. See, e.g., La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (notin g t he district court must determine the reasonable number of hours expended on litigation a nd t he reasonable hourly rates). Although Montagnes and Compa presen t the prevailing market rate for New Orleans (Doc. 216-2 at p. 3; Doc. 216-4 at p. 3) this Court finds the rates in t he New Orleans market informative as to the rates in Baton Rouge. See Stogner, 2011 WL 6140670, at *2 n.4; Advocacy Center v. Cain, 2014 WL 1246840, *6 n .6. Furth ermore, additional affidavits presented by
8

Plaintiffs state that the rates are comparable in the Eastern and Middle Districts of Louisiana. (Doc. 187-8 at p. 3).
Vora states in his affidavit that $350 would be a reasonable rate for attorneys of comparable sk ill and experience in Los Angeles, California. (Doc. 216-6 at p . 3). Because this Court does not sit in Los Angeles area, nor is the Los Angles market of comparable size to the Middle District, the information presented in the affidavit is not germane as to the reasonableness of a prevailing market rate for an attorney of Vera's skill and experience in the relevant legal market. See Creecy u. Metro. Prop. and Cas. Ins. Co., 548 F. Supp.2d 279, 284 (E.D. La. 2008) (finding t estimony a lone is inadequate to establish a reasonable market rate). Thus, considering Vora contributed significantly fewer hom·s:3 than Montage or Compa and Defen dants did not contest the reasonableness of the rates, the Court finds it reasonable to reduce Vera's rate to that of Montage's, which is $225 per hour. (Doc. 216- 1 at p. 9; Doc. 218 at pp. 3-4). See Hensley, 461 U .S. at 1939 (finding that a court can reduce a reward if the party's documentation is inadequate to prove a reasonable rate).
Defendants argue that the Court cannot grant sanctions under its inherent authority because t he order granting attorney fees did not specifically find Defendants in bad faith. (Doc. 216 at pp. 2-3). This argument is meritless. Defendants were on notice from a previous finding of bad faith, which resulted in similar sanctions, that any alteration of evidence would result in further sanctions . (Doc. 88 at p. 49). Despite this warning, Defendants willingly violated t he Court's
3 Specifically, Vora's billings constitute roughly six and a quarter hours of the total seventy-five and one half hours billed.
9

Order for a second time. That the Defendants were found to be in bad faith at the October 29, 2014 hearing was obvious. The Court made it ab undantly clear to Defendants again that further violation of Co urt Orders would not be tolerated.
B. Reasonable Hours In addition to demonstrating that rates are reasonable, Plaintiffs must also establish that the number of hours expended was reasonable. The calculation for attorneys' fees must constitute a good faith effort to exclude hours that are "excessive, redundant or otherwise unnecessary." Hensly, 461 U.S. at 434. Further, the plaintiff bears the burden of "proving that the number of hours for which comp ensation is reque sted is reasonable." Cooper u. Pentecost, 77 F.3d 829, 832 (5th Cir. 1996). The court may reduce the reward if a plaintiffs requested hours are "vague or incomplete." La. Power, 50 F.3d at 324. Courts have stricken um·easonable travel time from an attorneys' fee award. See e.g., Leonard u. State of Louisiana , No. 07-0813, 2010 WL 3780793, at *5 (\V.D. La. Sept. 20, 2010). For example, in Leonard u. State of Louisiana, the court awarded the plaintiffs attorneys' fees as the prevailing party in a 42 U.S.C. § 1983 claim . Id. at *3. Defendants challenged the attorneys' travel time, which allotted nearly ten hom·s for travel fro m Baton Rouge to New Orleans. Id. at *5. Although the attorneys claimed the delay was caused by "bad weather and traffic," the court r educed the travel time to two hours, presuma bly the average travel time from Baton Rouge to New Orleans. Id.
10

Like Leonard, Plaintiffs included travel time" for a trip to Angola to meet
with the Special Master.5 (Doc. 216-1 at p. 6). Both Montagnes a nd Compa stated
in their affidavits th at the trip was "sched uled in response to the removal of the
thermometers." (Doc. 216-4 at p. 3; Doc. 216-6 at p. 3). Similarly, the Special
Master specified that the purpose of the trip was to "educate [him] about the death
row facilities and present status of temperature measures." (Doc. 218-2 at p. 1).
Because the purpose of the visit was related to t he temperature measurement
devices, t he Court finds that the hours for the visit were reason ably associated with
the motion to maintain the status quo. (Doc. 214 at p. 1).6
Defendants a rgue that travel to Angola was not reasonably in furtherance of
the litigation7 beca use it was undertake n voluntarily by P la intiffs .s (Doc. 218 at p.
5). However, a lthough the inspection was for the purpose of "educating the Special
Master," his education principally concerned the measuremen t devices being used
in th e prison. (Doc. 218 at p. 7; Doc. 218-2). In an email, the Specia l Master wrote,
·• Round trip mileage is calculated at 272 miles. (Doc. 216-9 at p. 1). Total time for the trip is eight hours and thirty-five minutes. (Doc. 216-3 at p. 1). Compa also included thirty-two minutes for a meeting discussing the trip into her total. (Doc. 216-6 at p. 1). 5 Plaintiffs also seek fees a nd costs to cover traveling from their office in New Orleans to Baton Rouge to attend a hearing on the matter; however, Defendants do not contest these hours or costs. G Defendants do not contest the Court's power to award travel expenses as part of the reward for attorney's fees, only the reasonableness of the travel. 7 Because Defendants only contest the Plaintiffs' hours spent traveling to Angola, the Court awards t he re mainder of Plaintiffs' hours . s Defendants also a rgue the Special Master undertook this trip volunta rily because the Court "suggested- not orde red-Special Master to tour the death row tiers." (Doc. 218 at p. 7). This a rgume nt is wholly without merit. and thus need not be addr essed. However . the Com·t notes that Defendants' cavalier attitude and general lack of respect for the Court's "suggestions" exemplifies why Defendants have been repeatedly sanctioned for violating this Com·t's orders.
11

"As I indicated in my earlier ema il this is a visit for my purpose only a nd simply to educate me about the death row facilities a nd t he temperature measurement devices ." (Doc. 218-2 at p. 1) (emphasis added).
The Special Master furt her stated, "I would expect some discussion by t he State reps of facilities and the temperature measurement devices and how they are monitored." (Doc. 218 at p. 7) (emphasis added). Because t he explicit purpose of the investigation was to educate the Special Master about the temperature measuring devices -- the crux of Plaintiffs' Motion -- Plaintiffs' decision to join th e Special Master was at t he very least "associated with the .. . motion [to Maintain the Status Quo]" a nd, t herefore, reasonably considered attendant to t he instant motion. (Doc. 214 at p. 1).
Defendants a lso argue t hat Plaintiffs included two hours at a lunch with the Special Master, which is not time reason ably spent on litigation. (Doc. 218 at p. 8). On t his point, Plaintiffs concede that t he meal with the Special Master could reasonably be deducted. (Doc. 225 at p. 3). Althou gh Plaintiffs claim traffic congestion accounted for thirty minutes of t he lunch (Doc. 225 at p. 4), as in Leonard, this Court may find time spe nt on t ravel delay (even r easonable delay) is not reasonably spent on litigation. See Leonard, 20 10 WL 3780793, at *5. Because the meal h ours were not reasonably spent on litigation, the Court will reduce the Plaintiffs' reward by two hours for both Montages a nd Campa, for a total of a four hour reduction to the total number of hours.
12

III. Conclusion For the foregoing reasons, IT IS ORDERED that Plaintiffs' Motion to Set Attorney's Fees and
Costs Regarding the Maintenance of the Status Quo (Doc. 216) is GRANTED IN PART and DENIED IN PART. The Court ASSESSES COSTS against the Defendants in the amount of $15,019 in fees and $243.04 in costs.

/]~day Baton Rouge, Louisiana, this

of July, 2015.

BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

13

 
 Case: 14-30067 Document: 00513166127 Page: 1 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 1 of 26

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
August 24, 2015

Mr. Michael L. McConnell U.S. District Court, Middle District of Louisiana 777 Florida Street Room 139 Baton Rouge, LA 70801
No. 14-30067 Elzie Ball, et al v. James LeBlanc, et al USDC No. 3:13-CV-368

Dear Mr. McConnell,
Enclosed is a copy of the judgment issued as the mandate and a copy of the court's opinion.
Record/original papers/exhibits to be returned.

Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________ Sabrina B. Short, Deputy Clerk 504-310-7817
cc: Ms. Elizabeth Claire O'Kane Compa Mr. Brian D. East Ms. Erin Helene Flynn Mr. Mark Lenard Gross Mr. Grant Joseph Guillot Mr. James Leslie Hilburn Mr. Carlton Jones III Mr. Scott Charles Medlock Ms. Mercedes Hardy Montagnes Mr. Hiren Pravinchandra Patel Mr. Edmond Wade Shows Mrs. Cecelia Trenticosta Kappel Mr. Nilay U. Vora

Case: 14-30067 Document: 00513166120 Page: 1 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 2 of 26

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________________

Certified as a true copy and issued as the mandate on Aug 24, 2015
Attest:

No. 14-30067 _______________________
D.C. Docket No. 3:13-CV-368

Clerk, U.S. Court of Appeals, Fifth Circuit

ELZIE BALL; NATHANIEL CODE; JAMES MAGEE,

United States Court of Appeals Fifth Circuit
FILED
July 8, 2015
Lyle W. Cayce Clerk

Plaintiffs - Appellees Cross-Appellants

v.

JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; ANGELA NORWOOD, Warden of Death Row; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,

Defendants - Appellants Cross-Appellees

Appeals from the United States District Court for the Middle District of Louisiana, Baton Rouge

Before REAVLEY, JONES and ELROD, Circuit Judges.

J U D G M E N T

This cause was considered on the record on appeal and was argued by counsel.

It is ordered and adjudged that the judgment of the District Court is affirmed in part and vacated in part, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.

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IT IS FURTHER ORDERED that each party bear its own costs on appeal.
REAVLEY, Circuit Judge, dissenting.

Case: 14-30067 Document: 00513166121 Page: 1 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 4 of 26

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30067

United States Court of Appeals Fifth Circuit
FILED
July 8, 2015

ELZIE BALL; NATHANIEL CODE; JAMES MAGEE,

Lyle W. Cayce Clerk

Plaintiffs - Appellees Cross-Appellants

v.

JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; ANGELA NORWOOD, Warden of Death Row; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,

Defendants - Appellants Cross-Appellees

Appeals from the United States District Court for the Middle District of Louisiana
Before REAVLEY, JONES and ELROD, Circuit Judges. EDITH H. JONES, Circuit Judge:
In 2006, Louisiana built a new state-of-the-art prison facility to house death-row inmates. The cells in that facility, located in Angola, Louisiana, lack air conditioning. Three inmates sued the Louisiana Department of Corrections (the “State”) and various prison officials in their official capacities,1 claiming
1 The officials include James M. LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections; Nathan Burl Cain, Warden of the Louisiana State Penitentiary in Angola; and Angela Norwood, Assistant Warden in charge of death row. We refer to all appellants collectively as “the State” because suit against officials in their official capacity only is essentially against the State of Louisiana.

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No. 14-30067 that the heat they endure during the summer months violates the Eighth Amendment because of their pre-existing medical problems. They also assert that the failure to provide air conditioning violates the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the Rehabilitation Act (“RA”), 29 U.S.C. § 794. After a bench trial, the district court sustained the prisoners’ Eighth Amendment claims, rejected their disability claims, and issued an injunction effectively ordering the Defendants to install air conditioning throughout death row.
Although the trial court’s findings of deliberate indifference by prison officials to these particular inmates’ serious heat-related vulnerability suffice to support a constitutional violation, the scope of its injunctive relief exceeds our prior precedent, Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004), and the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626. Despite an oversight concerning applicable law, the court did not err in rejecting the prisoners’ disability claims. We affirm in part, but vacate and remand the court’s injunction for further consideration.2
BACKGROUND Angola’s 25,000 square-foot death-row facility3 consists of a pod surrounded by four housing wings. Inside the pod are administrative offices, visitation rooms, a medical and dental clinic, a control center, and an execution chamber. Within each of the four housing wings, two tiers of cells sit back-toback. Each tier is lettered A through H. None of the housing tiers are air conditioned, but the rest of the facility is. To alleviate the summer heat, windows (which can be opened) line the exterior wall of each housing tier. Next
2 Our issuance of this ruling renders moot the Plaintiffs’ request that we lift the stay pending appeal.
3 The death row unit is one of several buildings collectively known as the “Louisiana State Penitentiary” or “Angola.” Only the death-row facility is implicated here, however.
2

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No. 14-30067 to the windows are 30-inch fans, which serve two adjoining cells. Inside each cell is a six-by-eight-inch vent that draws air into the cell from the window across the tier and vents outside.
Although death-row inmates spend twenty-three hours a day in their cells, in-cell sinks provide unlimited access to potable water. Inmates also enjoy access to ice. Each housing tier has an ice chest, which the Angola staff maintains. Inmates can only access the chest themselves during the one hour a day they are allowed to walk the tiers. The rest of the time inmates depend on guards or other inmates for ice.4 The uncontroverted evidence shows that the ice chests run out from time to time, either because the lone ice machine cannot generate enough ice or it breaks.
The three plaintiffs here, Elzie Ball, Nathaniel Code, and James Magee, are long-time residents of Angola’s death-row facility. Magee lives on tier A, while Ball and Code live on tier H. Each suffers from various conditions: all three prisoners have hypertension; Ball has diabetes and is obese; Code is also obese and has hepatitis; and Magee is depressed and has high cholesterol. They take a variety of medications to control their ailments. According to the inmates, the extreme heat, not ameliorated by air conditioning, exacerbates their ailments, causing dizziness, headaches, and cramps.
Each inmate filed administrative complaints explaining that the heat was exacerbating his conditions and requesting air conditioning. The Defendants denied their requests. Internal appeals of the rulings were unsuccessful. Consequently, in June 2013, the inmates sued the Louisiana Department of Corrections and prison officials asserting claims under the
4 Inmates can distribute ice to other inmates during the one hour they are allowed to walk the tiers. If, however, those inmates spend their free hour in recreation or showering, then the other inmates may not receive ice.
3

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No. 14-30067 Eighth Amendment’s ban on cruel and unusual punishment and violations of the ADA and RA. As relief, the prisoners sought an injunction requiring the state to keep the heat index at or below 88º F.
A month later, the district court appointed United States Risk Management (“USRM”) to monitor the temperature at the facility. During the monitoring period, July 15 to August 5, the temperature on tiers A and H ranged from 78.26º to 92.66º F.5 Meanwhile, the heat index ranged from 81.5º to 107.79º F. On five separate days the heat index on tier A surpassed 100º F. On tier H, the heat index surpassed 100º F on seven days.
After the data collection period, the district court held a three-day bench trial. Experts testified about the Plaintiffs’ medical conditions, the conditions on death row, the design and construction of the facility, and the effectiveness of current practices and procedures. The judge personally toured the facility to observe the conditions first-hand. Several months later, the district court issued a 100-page ruling that concluded the conditions on death row are cruel and unusual because of extreme heat during parts of the year. The court denied the prisoners’ ADA and RA claims because they are not disabled. Based on the constitutional violation, the court issued a permanent injunction, requiring the state to develop a plan to keep the heat index at or below 88º F. Effectively, the district court ordered Louisiana to install air conditioning. Both sides now appeal.
5 USRM monitored the temperature on all the tiers. But because the Plaintiffs only reside on tiers A and H, and because this is not a class-action, only readings from those tiers are relevant to this appeal.
4

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No. 14-30067 DISCUSSION The parties present four issues. The Defendants assert that the district court made several erroneous evidentiary rulings, wrongly found a constitutional violation, and issued an overbroad injunction contrary to the PLRA, 18 U.S.C. § 3626, and Gates v. Cook, 376 F.3d 323 (5th Cir. 2004). The inmates’ cross-appeal contends that the district court used a superseded definition to determine whether they are disabled under the ADA and RA. We review the liability issues first, then the scope of the injunction.
I. Evidence The State’s evidentiary objections are easily resolved. It contends that the heat index, on which the district court based its ruling, is inherently unreliable and inappropriate in prison settings. It also contends that the court should not have taken judicial notice of other facts without providing the State an opportunity to respond. The objections are meritless. We review evidentiary rulings for abuse of discretion. Battle ex rel. Battle v. Mem’l Hosp. at Gulfport, 228 F.3d 544, 550 (5th Cir. 2000) (citing JonT Chemicals, Inc. v. Freeport Chem. Co., 704 F.2d 1412, 1417 (5th Cir. 1983)). Even if the court abused its discretion, this court will presume the error is harmless. See FED. R. CIV. P. 61; Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). The party asserting the error has the burden of proving that the error was prejudicial. See Dietz v. Consol. Oil & Gas, Inc., 643 F.2d 1088, 1093 (5th Cir. 1981) (quoting Liner v. J.B. Talley and Co., Inc. 618 F.2d 327, 329 (5th Cir. 1980)). The district court did not abuse its discretion by admitting evidence of or relying on the heat index. The thrust of the State’s argument is that because heat index is a derived number, courts cannot use it as a basis for ruling. Although the State’s expert meteorologist, Jay Grymes, testified that the heat index is “not a real number,” the rest of his testimony bolsters the use of the
5

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No. 14-30067 heat index. For example, Grymes testified that the heat index is a “guideline number” and that he “provide[s] heat index as a guide to [his] viewers to make better decisions.” Dr. Susi Vassallo, the Plaintiffs’ expert, testified that peer reviewed scientific articles measure the correlation between heat index and morbidity and mortality. This court also has relied on the heat index before. See Gates, 376 F.3d at 339 (upholding increased access to ice, water, and showers when the heat index exceeds 90º F.). In the absence of further proof, the court did not abuse its discretion.
The State’s complaint about the court’s taking judicial notice of publicly available evidence is similarly weak. The court cited an article from the National Weather Service’s website called Heat: A Major Killer and referred to temperature readings from the Baton Rouge Regional Airport.
Because the district court did not warn the State that it would be taking judicial notice of these materials, the State complains it was “deprived of the opportunity to request an opportunity to be heard regarding the data.” Rule 201, however, expressly contemplates courts’ taking judicial notice without prior warning. See FED. R. EVID. 201(e) (“If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.” (emphasis added)); 21B KENNETH W. GRAHAM, JR., FED. PRAC. & PROC. EVID. § 5109 (2d ed.) (Rule 201 does “not require any notice to the parties that judicial notice [is] about to be taken,” and “a party might get no advance notice at all”). The State, moreover, did not avail itself of the Rule’s provision requiring the court to provide an opportunity to be heard. See FED. R. EVID. 201(e); See also FED. R. CIV. P. 59(a)(2) (“After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”). In any event, the State’s explanation of prejudice is vague, cursory and unpersuasive. It makes no showing that the
6

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No. 14-30067 district court’s consideration of the National Weather Service article or Baton Rouge temperature readings altered the outcome. See Dietz, 643 F.2d at 1093. The judicial notice objections fail as well as the heat index objection.
II. Eighth Amendment Turning to the Plaintiffs’ Eighth Amendment claims, the Constitution “ ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones.” Farmer v. Brennan. 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981)). Extreme cell temperatures, therefore, can violate the Eighth Amendment. To be tantamount to the infliction of cruel and unusual punishment, prison conditions must pose “an unreasonable risk of serious damage” to a prisoner’s health – an objective test – and prison officials must have acted with deliberate indifference to the risk posed—a subjective test. Helling v. McKinney, 509 U.S. 25, 33-35, 113 S. Ct. 2475, 2481-82 (1993) (holding exposure to an “unreasonable risk of damage to [a plaintiff’s] health” actionable under the Eighth Amendment); see also Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327 (1991) (postulating that “a low cell temperature at night combined with a failure to issue blankets” can violate the Eighth Amendment); Gates, 376 F.3d at 339. Without the requisite proof of both subjective and objective components of an Eighth Amendment violation, however, merely “uncomfortable” heat in a prisoner’s cell does not reflect “a basic human need that the prison has failed to meet” and is not constitutionally suspect. Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995). The predicate findings of a substantial risk of serious harm and officials’ deliberate indifference to the risk are factual findings reviewed for clear error. Gates, 376 F.3d at 333; Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010) (citing Farmer, 511 U.S. at 842, 114 S. Ct. at 1981). “ ‘A finding is clearly erroneous if it is without substantial evidence to support it, the court
7

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No. 14-30067 misinterpreted the effect of the evidence, or this court is convinced that the findings are against the preponderance of credible testimony.’ ” Petrohawk Props., L.P. v. Chesapeake La., L .P., 689 F.3d 380, 388 (5th Cir. 2012) (quoting French v. Allstate Indem. Co., 637 F.3d 571, 577 (5th Cir. 2011)). This court reviews de novo whether the facts so found violate the Eighth Amendment. Gates, 376 F.3d. at 333.
For various reasons, the State asserts that the Plaintiffs are not at substantial risk of serious harm and its officials were not deliberately indifferent to this risk. Further, the State contends that, because it provides the remedies this court mandated in Gates, there can be no Eighth Amendment violation as a matter of law. We reject these challenges to the trial court’s findings.
Based mainly on Dr. Vassallo’s testimony, the district court found that the heat puts these plaintiffs at substantial risk of serious harm. According to Dr. Vassallo, the cardiovascular system is critical for maintaining normal body temperature. Dr. Vassallo testified that both hypertension and diabetes can adversely affect this critical system. “The heart has to be able to pump very hard to meet the demands of heat.” Hypertension generally can decrease “the ability of the blood vessels to open and close.” As a result, those vessels are “not as compliant as they should be,” “they can’t open like they should and have to in response to heat,” and blood therefore cannot circulate to cool the body. Therefore, people with hypertension generally can have a hard time controlling their body temperature. The same is true for people with diabetes. Cardiovascular disease, which can result from diabetes, can harden the arteries and blood vessels, thus inhibiting circulation. As a result, diabetics can lose ability to circulate blood properly and thus the ability to maintain normal body temperature.
8

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No. 14-30067 The treatments for hypertension can further inhibit these prisoners’ ability to regulate body temperature. Specifically, beta blockers, which help control blood pressure, can compound the effects hypertension has on the cardiovascular system. Beta blockers prevent blood vessels from dilating properly while at the same time “decreas[ing] the heart’s ability to pump as hard and to meet the requirements of heat or exercise.” Likewise, diuretics decrease the total amount of water and salt in the body, resulting in less fluid around which the heart can contract. According to Dr. Vassallo, without sufficient fluid to contract, the heart is unable to meet the increased demands heat places on the cardiovascular system. Therefore, even if prisoners receive proper care for their ailments, they may be at increased risk of heat stroke. This evidence of the Plaintiffs’ heightened vulnerability to high temperatures, combined with the USRM temperature data showing the high temperatures on tiers A and H, led the court to find that the Plaintiffs are at substantial risk of serious harm. The State argues that the totality of the record evidence refutes Dr. Vassallo’s opinion. Specifically, the district court discounted the State’s arguments that no death-row prisoner has ever suffered a heat-related incident; these prisoners’ medical records show no signs of heat-related illness; the prisoners’ poor dietary choices and failure to exercise caused their health problems; and the prisoners’ suffer high blood pressure all year, not just in the summer months. Thus, the State contends, the prisoners do not suffer an unreasonable risk of serious heat-related injury at all.
These facts fail to show that the district court clearly erred. First, that no one at Angola, including these plaintiffs, has ever had a heat-related incident and that these prisoner’s medical records do not show signs of heatrelated illness are insufficient. To prove unconstitutional prison conditions, inmates need not show that death or serious injury has already occurred. See
9

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No. 14-30067 Helling, 509 U.S. at 33, 113 S. Ct. at 2481 (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition.”). They need only show that there is a “substantial risk of serious harm.” Gates, 376 F.3d at 333. Further, Dr. Vassallo provided a reasonable explanation for the lack of past harm to these plaintiffs: “heat stroke is a failure of thermoregulation which is dramatic and catastrophic. It occurs suddenly . . . . People can suffer suddenly from heat stroke without ever having complained about the weather.” As a result, the district court plausibly concluded that the Plaintiffs here are at a substantial risk of serious harm.6
Second, because the Plaintiffs forego exercise and overeat junk food, the State asserts that their ailments and any accompanying risk are their own creation. Prison canteen records confirm these inmates’ consumption of unhealthy foods with high sugar and salt content. Although this may be true, the evidence is at best conjectural about the connection between these plaintiffs’ conditions and their lifestyle. We are constrained to agree with the district court’s finding that, canteen food comprises only part of the prisoners’ diets, and their medical conditions arise from a combination of factors, many of which are outside their control. Thus, the district court did not clearly err when, in the face of conflicting evidence, it found that these prisoners are at substantial risk of serious harm.
Finally, that the prisoners suffer year-round high blood pressure is simply irrelevant to the district court’s substantial-risk finding. The prisoners’ complaint is that their high blood pressure places them at an abnormally high risk of heat stroke during Louisiana’s extended hot season. The lower risk in other months does not offset their vulnerability during the summer any more
6 We emphasize, however, that the finding of substantial risk regarding a heat-related injury is tied to the individual health conditions of these inmates.
10

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No. 14-30067 than an allergy to insect bites ceases to exist when the bugs are dormant in winter.
The second element for Eighth Amendment liability requires “prison official[s] [to] have a ‘sufficiently culpable state of mind.’ ” Farmer, 511 U.S. at 834, 114 S. Ct. at 1977 (quoting Wilson, 501 U.S. at 297, 111 S. Ct. at 2323). “In prison conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302-303, 111 S. Ct. at 2326). Deliberate indifference is itself a two-prong inquiry. An official must both be “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and “he must also draw the inference.” Id. at 837, 114 S. Ct. at 1979. “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842, 114 S. Ct. at 1981 (internal citations and quotation marks omitted).
The district court relied on a variety of evidence showing that the State knew of and disregarded a substantial risk to the Plaintiffs. Medical personnel routinely monitor prisoners and administer medication daily. Correctional officers “closely monitor” the temperature on death row, recording the temperature every two hours. Defendant Norwood, moreover, testified that the prison maintains a list of, and monitors more closely, inmates particularly susceptible to heat-related illness. None of the Plaintiffs was on the list, although Norwood personally reviewed the ARPs for each prisoner, inspected each prisoner’s medical records, interviewed both Ball and Code, and admits Magee should have been on the list. Defendant Cain admitted that he was always thinking about “how to overcome the heat” and that he considered adding extra fans and ice on the tiers. Most strikingly, after this suit was filed,
11

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No. 14-30067 and during the court-ordered monitoring period the Defendants surreptitiously installed awnings and began soaking some of the tiers’ exterior walls with water in an attempt to reduce the interior temperature. Their trick backfired. Based on these facts, the district court reasonably inferred that the Defendants knew of a substantial risk of serious harm to the Plaintiffs.
Yet the State complains that the deliberate indifference finding is fundamentally flawed because the district court relied solely on the prisoners’ administrative remedy requests, which are required under the PLRA. See 42 U.S.C. § 1997e(a). If that is sufficient to prove deliberate indifference, the State continues, then there is no need for a court to separately analyze the deliberate indifference prong. As a statutory necessity, see Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012), every case includes an administrative remedy request. Whenever a court finds that a prisoner’s complaint was justified—i.e., that there is a substantial risk of harm—the defendant will be guilty of violating the Eighth Amendment.
We agree with the Defendants’ premise—a request for administrative relief cannot alone prove deliberate indifference. A request for administrative relief is at best only circumstantial evidence that a prison official is aware of facts from which he can deduce a risk of harm; it is not even particularly strong evidence of that. Because grievances are essentially pleadings, not evidence, they must have independent verification before they become probative. Separating the few meritorious complaints from the mountain of frivolous complaints is as difficult work for prison officials as for federal courts. A legitimate complaint can go unrecognized by even the most diligent official. As a result, a prison administrator who has received an administrative remedy request is not necessarily made aware, without factual corroboration, that there is a substantial risk of serious harm.
12

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No. 14-30067 Although the State’s premise is correct, its conclusion that the district court’s deliberate indifference finding is erroneous does not follow. The district court did not base its finding solely on the prisoners’ administrative requests, but on the totality of the record evidence. There is more than enough, particularly in light of the State’s attempt to cool down the cells with awnings and misting without telling the court, to prove subjective awareness of a substantial risk of serious harm. Therefore, the district court’s deliberate indifference finding is not clearly erroneous. Even if it cannot overcome the district court’s factual findings, the State argues that this court’s decision in Gates v. Cook precludes liability. Gates upheld an injunction requiring Mississippi to equip each cell with fans, provide inmates with additional access to ice water, and allow daily showers when the heat index in the cells exceeded 90º F. 376 F.3d at 339. The State claims to offer these exact remedies year-round. The district court, however, demonstrated that Gates is distinguishable. Where Gates approved fans for each cell, each fan in Angola’s death row serves two cells. Ball v. LeBlanc, 988 F. Supp. 2d 639, 680 n.100 (M.D. La. 2013). Although a seemingly minor difference, the district court found that “the fans [at Angola] [do] not provide equal amounts of air flow to each cell, nor [do] the fans provide a detectable cooling effect.” Id. The district court in Gates also ordered increased in-cell access to ice. 376 F.3d at 339. Here, by contrast, inmates have unfettered access to ice only during the one hour a day they can walk the tiers.7 Ball, 988 F. Supp. 2d at 680 n.100. When the prisoners are in their cells, they depend on other inmates or guards for ice. Id. And while the State allows prisoners to shower once a day, as approved in Gates, the water
7 Even then, obtaining ice is no guarantee. The record suggests that the ice machine occasionally breaks down leaving the tier ice chests empty.
13

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No. 14-30067 temperature is maintained between 100 and 120º F. for sanitation purposes, thus providing little relief from the heat. Id. Given these material differences, Gates does not preclude holding that the State violated the Eighth Amendment.
Based on its findings of fact, we affirm the district court’s conclusion that housing these prisoners in very hot cells without sufficient access to heat-relief measures, while knowing that each suffers from conditions that render him extremely vulnerable to serious heat-related injury, violates the Eighth Amendment.
III. Disability Claims The inmates assert that the State’s failure to alleviate the heat violates their rights to a reasonable accommodation for their “disabilities” under the ADA and RA.8 The district court rejected the prisoners’ claims because they presented no evidence that they are disabled.9 Ball, 988 F. Supp. 2d at 687. The prisoners argue that the district court’s conclusion rests on an abbreviated definition of disability and superseded case law. Although the prisoners are correct, there is still no evidence that the prisoners are disabled under the correct definition, so any error was harmless. We review the district court’s conclusions of law de novo, and its factual findings for clear error. Lightbourn v. Cnty. Of El Paso, Tex., 118 F.3d 421,
8 On appeal, the prisoners also assert a disparate-impact claim. But the prisoners’ complaint does not allege a disparate-impact claim and, as far as we can tell, this appeal is the first time the prisoners have asserted such a claim. “It is a bedrock principle of appellate review that claims raised for the first time on appeal will not be considered.” Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctr., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). Accordingly, we will not address the prisoners’ disparate-impact claim.
9 To succeed on a failure-to-accommodate claim, a plaintiff must prove: (1) he is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered entity; and (3) the entity failed to make reasonable accommodations. Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013). The ADA applies to
14

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No. 14-30067 426 (5th Cir. 1997). If the district court made a legal error that affected its factual findings, “remand is the proper course unless the record permits only one resolution of the factual issue.” Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S. Ct. 1781, 1792 (1982); see also Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir. 2014), cert. denied, No. 14-1138, 2015 WL 1255228, at *1 (June 22, 2015).
Under both the ADA and RA,10 a person is disabled if he has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). The statute defines a major life activity in two ways. First, major life activities include, but are not limited to:
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Id. § 12102(2)(A). Second, a major life activity includes “the operation of a major bodily function.” Id. § 12102(2)(B). Such functions include, but are not limited to:
the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Id. The prisoners can prove themselves disabled if their ailments substantially limit either a major life activity or the operation of a major bodily function.
The prisoners point out that the district court considered whether they are disabled only under the first definition of major life activities; it did not
prisoners. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952, 1956 (1998). The district court found each prisoner failed to prove the first prong—i.e., that they are disabled.
10 The RA incorporates the ADA definition of disability by reference. See 29 U.S.C. § 705(20)(B). Accordingly, if the prisoners are disabled, they are disabled under both statutes.
15

Case: 14-30067 Document: 00513166121 Page: 16 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 19 of 26
No. 14-30067 consider whether their impairments affect a major bodily function. We agree. The district court quoted only the first definition of a disability, but it overlooked that “a major life activity also includes the operation of a major bodily function.” Id. § 12102(2)(B). The district court also partially relied on Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681 (2002), which Congress superseded in the Americans with Disabilities Amendments Act of 2008 (“ADAAA”). Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245 (5th Cir. 2013).
Although this error may have affected the district court’s determination, the question remains whether any evidence supports the prisoners’ disability claims. The prisoners argue that “thermoregulation” is a major life activity, there is ample evidence in the record showing their thermoregulatory functions are impaired, and therefore they are disabled.
Assuming arguendo that thermoregulation is a major life activity,11 there is no evidence that these prisoners’ thermoregulatory systems are actually impaired. According to Dr. Vassallo, thermoregulation is “the capacity of the body to maintain the temperature of 98.6 within half a degree or so.” There is no evidence that the prisoners’ ailments have ever caused their body temperatures to rise above 98.6º F. In fact, Dr. Vassallo testified that the prisoners’ symptoms are consistent with normal body temperatures, there is no indication that these prisoners have ever had elevated body temperatures,
11 The prisoners urge this court to hold that thermoregulation is a major bodily function (and thus a major life activity) because the ADA’s list is non-exhaustive. See 42 U.S.C. § 12102(2)(B). Before the passage of the ADAAA, this court left undecided whether “the regulation of body temperature constitutes a major life activity under the ADA.” EEOC v. Argo Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009). Post-ADAAA, no court has held that thermoregulation is a major bodily function, nor do EEOC regulations list thermoregulation as a major bodily function. 29 C.F.R. § 1630.2(i)(1)(ii). Accordingly, we take the cautious route and assume without deciding that thermoregulation is a major life activity.
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Case: 14-30067 Document: 00513166121 Page: 17 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 20 of 26
No. 14-30067 and there is no evidence that these prisoners ever experienced difficulty in thermoregulating.
That the record is devoid of such evidence is unsurprising. Over the course of the three-day trial, there is hardly any mention of the prisoners’ disability claims. The overwhelming majority of the testimony related to the future risk of heatstroke, not the prisoners’ present inability to maintain regular body temperature. As a result, the medical testimony focused generally on the risks to individuals with the same ailments as these prisoners, not on any limitations the prisoners presently experience. The prisoners’ counsel, moreover, never asked the three medical experts whether the prisoners’ thermoregulatory systems are actually impaired, probably because evidence in the record precludes any such assertion. This lapse is fatal to their disability claims. As this court has said before, although the current definition of disability “expresses Congress’s intention to broaden the definition and coverage of the term ‘disability,’ it in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination.” Neely, 735 F.3d at 245.12 The disability claims are insupportable as a matter of law even under the expanded legal definition of disability.
12 Ball also argues that he is disabled because diabetes impairs his endocrine system and his sight. Although this might be true, that Ball’s endocrine system and sight are impaired does not entitle him to relief from the heat. Only if Ball’s diabetes limits his ability to thermoregulate, can Ball get the only relief he requested—an order requiring Louisiana to keep the prison at or below 88 degrees. As for that claim—that Ball’s diabetes impairs thermoregulation—there is no evidence in the record.
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Case: 14-30067 Document: 00513166121 Page: 18 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 21 of 26
No. 14-30067 IV. The Injunction To remedy the Eighth Amendment violation, the district court ordered Louisiana to “develop a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit.” Ball, 988 F. Supp. 2d at 689. Effectively, the plan requires the State to install air conditioning throughout death row housing. The State attacks the district court’s order in two ways. First, it contends that the requirements for injunctive relief are not present here. Second, it argues that the injunction is overbroad because air conditioning is beyond the measures endorsed in Gates v. Cook and facilitywide relief violates the PLRA. This court reviews permanent injunctions for abuse of discretion. Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 254 (5th Cir. 2014) (citing N. Alamo Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916-17 (5th Cir. 1996)). An abuse of discretion occurs when the district court “ ‘(1) relies on clearly erroneous factual findings when deciding to grant or deny the permanent injunction[,] (2) relies on erroneous conclusions of law when deciding to grant or deny the permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunctive relief.’ ” Id. (quoting N. Alamo Water Supply Corp., 90 F.3d at 916-17). The court did not abuse its discretion by deciding to issue an injunction. The State’s first argument is that an injunction is improper because conditions to which these prisoners were subjected do not violate the Eighth Amendment. This contention fails in light of our sustaining the district court’s Eighth Amendment analysis. Moreover, in Gates as in other cases, courts have upheld injunctions in Eighth Amendment cases alleging unreasonably risky exposure to extreme temperatures. See Graves v. Arpaio, 623 F.3d 1043, 1045 (9th Cir. 2010) (per curiam) (leaving an injunction in place requiring a prison to keep inmates on certain medications in cells with temperatures below 85 degrees);
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Case: 14-30067 Document: 00513166121 Page: 19 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 22 of 26
No. 14-30067 Jones-El v. Berge, 374 F.3d 541, 542 (7th Cir. 2004) (upholding order to install air conditioning in Wisconsin’s “supermax” prison).
The scope of the injunction is another matter. The PLRA greatly limits a court’s ability to fashion injunctive relief. Before a district court can award such relief, it must find that “such relief is narrowly 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.” 18 U.S.C. § 3626(a)(1)(A). The court must also “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Id. If, after making the necessary findings and weighing the adverse impact on the criminal justice system, the court still feels injunctive relief is required, such relief “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” Id.
The district court’s injunction violates the PLRA in two ways. First, the district court ordered a type of relief—air conditioning—that is unnecessary to correct the Eighth Amendment violation. Under the PLRA, plaintiffs are not entitled to the most effective available remedy; they are entitled to a remedy that eliminates the constitutional injury. See Westefer v. Neal, 682 F.3d 679, 683-84 (7th Cir. 2012) (vacating an injunction under the PLRA because it exceeded what was required under the Due Process Clause). In Eighth Amendment cases, plaintiffs can only obtain a remedy that reduces the risk of harm to a socially acceptable level. Some risk is permissible and perhaps unavoidable. Here Plaintiffs’ own expert, Dr. Vassallo, explained that there are many acceptable remedies short of facility-wide air conditioning. For example, the Defendants could divert cool air from the guards’ pod into the tiers; allow inmates to access air conditioned areas during their tier time; allow access to cool showers at least once a day; provide ample supply of cold drinking water and ice at all times; supply personal ice containers and individual fans;
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Case: 14-30067 Document: 00513166121 Page: 20 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 23 of 26
No. 14-30067 and install additional ice machines. These are precisely the types of remedies this court endorsed in Gates v. Cook and that the PLRA requires. See 376 F.3d at 339-40. Accordingly, on remand the district court must limit its relief to these types of remedies.
The district court also erred because it awarded relief facility-wide, instead of limiting such relief to Ball, Code, and Magee. The district court apparently understood that it could not order facility-wide relief. At the start of trial, the district court said:
This is not, contrary to widespread belief, an effort to require the state to install air-conditioning for all of the tiers that house all death row inmates. I think the application for injunctive relief made clear that it’s only these three inmates that are of issue. And so, of course, the evidence in this case will pertain to any facts that are relevant as to these three . . . . plaintiffs and these three plaintiffs only. This is not a class action lawsuit. This is not, again, an effort to seek relief for anyone other than these three inmates.
It is unclear why the district court changed its mind when it fashioned the injunction. The PLRA limits relief to the particular plaintiffs before the court. 18 U.S.C. § 3626(a)(1)(A). This is not a class action; Ball, Code, and Magee are the only plaintiffs before the court. As a result, any relief must apply only to them, if possible. Brown v. Plata, --- U.S. ---, 131 S. Ct. 1910, 1940 (2011) (holding that “the scope of the order must be determined with reference to the constitutional violations established by the specific plaintiffs before the court”); Gates, 376 F.3d at 339 (vacating an injunction that purportedly applied to prisoners outside the class of plaintiffs because “it exceeds the scope of the litigation”); see also Graves, 623 F.3d at 1049-50 & n.2 (noting that if the district court can limit relief to an affected class-member, it must do so under the PLRA).
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Case: 14-30067 Document: 00513166121 Page: 21 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 24 of 26
No. 14-30067 Nevertheless, the district court ordered relief to all 85 death-row inmates because “the Defendants may move any death row inmate to a different tier and/or cell at any time.” Ball, 988 F. Supp. 2d at 688-89. Essentially, it felt the only way to provide effective relief to these three plaintiffs is to provide facility-wide relief. The district court’s determination, however, is erroneous. Even assuming that air conditioning is an acceptable remedy here—and it is not—it is possible to provide air conditioning solely to these three inmates. As the Defendants acknowledged at oral argument, Plaintiffs could be placed in cells next to the officers’ pod, which are cooler than those farther down the tiers. Louisiana could also air condition one of the four tiers for the benefit of prisoners susceptible to heat-related illness. When coupled with an order not to move the Plaintiffs from these cells unless certain conditions are met, these options could adequately remedy the Plaintiffs’ constitutional violation. Moreover, the Gates-type remedies available on remand—increased access to water, ice, cold showers, etc.—ought to (and must) be tailored to these three prisoners. Because the district court’s injunction provides an unnecessary type of relief and applies beyond these three Plaintiffs, it violates the PLRA. Accordingly, the district court abused its discretion. Finally, we note the substantial disparity between the relief ordered in Gates and the scope of the injunction in this case. The Gates court did not mandate a maximum heat index applicable in the Mississippi prison. It required particular heat measures, including fans, ice water, ice, and showers, “if the heat index reaches 90 degrees or above.” Gates, 376 F.3d at 336. The injunction here requires relief that is far more extensive, applies even during months when there is no heat risk to the Plaintiffs, covers the entire facility, and of course is expensive. Since Gates upheld an injunction providing narrower relief, and there is no showing that the Constitution mandated more
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Case: 14-30067 Document: 00513166121 Page: 22 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 25 of 26 No. 14-30067
relief for these prisoners for the same prison condition in this case, on remand the court must craft relief more closely aligned with Gates as well as consistent with the PLRA.
CONCLUSION For the foregoing reasons, we AFFIRM the district court’s resolution of the Eighth Amendment and disability claims, but VACATE and REMAND the district court’s injunction for reconsideration under the principles stated here.
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Case: 14-30067 Document: 00513166121 Page: 23 Date Filed: 08/24/2015 Case 3:13-cv-00368-BAJ-EWD Document 240 08/24/15 Page 26 of 26 No. 14-30067
REAVLEY, Circuit Judge, dissenting. I agree with almost all of the opinion, but I would affirm the injunction
which in principal only orders the heat index in the Angola death row tiers to be maintained below 88 degrees.
23

 
 UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS J AMES M. LEBLANC, ET AL.

CIVIL ACTION NO.: 13-00368-BAJ-EWD

RULING AND ORDER Before the Court is the Motion to Modify Injunctive R elief (Doc. 315) filed by Plaintiffs. Plaintiffs - three seriously ill de ath-row inmates who are currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana ("Angola") seek an order compelling Defendants - the Louisiana Department of Public Safety and Corrections and its Secretary, the Warden of Angola, and the Assistan t Warden in charge of the death-row facility at Angola - to implement Defendants' initial Heat Remediation Pla n (Doc. 118), which proposed t he installation of air-conditioning th roughout the death-row facility as a remedy to t he constitu tional violations found by this Court following a non-jury trial on t he m erits. Defendants oppose the Motion. (See Doc. 318). On June 15, 2016, the Court held a n evidentiary h earing on this matter, and the parties filed post-hearing briefs. (See Docs. 353, 354). Subsequently, the Court held two additional evidentiary hearings. For reasons explained herein, Plaintiffs' Motion to Modify Injunctive Relief (Doc. 315) is GRANTED IN PART a nd DENIED IN PART.

I. BACKGROUND
Plaintiffs Elzie Ball ("Ball"), Nathaniel Code ("Code"), and J ames Magee ("Magee") (collectively, "Plaintiffs") filed this lawsuit on June 10, 2013, pursuant to 42 U.S.C. § 1983; the Eighth Amendment to the United States Constitution, U.S. Const. amend. VIII; the Fourteenth Amendment to the United States Constitution, U .S. Const. amend. XIV, § 1; Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as modified by the Americans with Disabilities Act Amendments Act, 42 U .S .C. § 12131 et seq.; and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. (Doc. 1). Plaintiffs alleged that Defendants had violated their rights by subjecting them to excessive heat, thereby endangering their health and safety. (Id. at ~ 12). Plaintiffs sought declaratory and injunctive relief from this Court, requesting that Defendants be required to, among other things, develop a nd impleme nt a long-term plan to maintain the heat index in Angola's death-row tiers at or below 88 degrees Fahrenheit. 1 (Doc. 12 at p. 4). Defendants denied all liability. (See Doc. 38).
Following a non-jury trial on the merits, this Court found that the extreme heat that Plaintiffs endured in the death-row tiers at Angola subjected Plaintiffs to a substantial risk of serious harm and t hat Defendants acted with deliberate indifference to that substantial risk of serious h arm, in violation of Plaint iffs' Eighth Amendment right to be free from cruel and unusual punishment.2 See Ball v.
1 Any s ubsequent reference to a measmement of degrees in this Ruling and Orde r, unless otherwise noted, utilizes the F ahrenheit scale. 2 The Court denied Plaintiffs' claims under the Americans with Disabilities Act, as modified by the Americans with Disabilities Act Amendments Act, and the Rehabilitation Act. See Ball u. LeBlanc,
2

LeBlanc, 988 F. Supp. 2d 639 (M.D. La. 2013), aff'd in part, vacated in part, remanded, 792 F.3d 584 (5th Cir. 20 15). The Court found th at the uncontroverted evidence established that "inmates housed in each of the death r ow tiers were frequently subjected to heat indices above 100 degrees," id. at 664, and that "the temperature, humidity, and heat index recorded inside the death row tiers was, more often than not, the same or higher than the temperature, humidity, and heat index recorded outside of the death row tiers," id. at 653. Further, the Court found that "inmates housed in .. . two tiers were subjected to heat indices as high as 110.3 degrees." Id. at 664. Even healthy individuals are at risk of serious harm in such conditions of extreme heat, but according to expert testimony, the risk of harm to Plaintiffs is exacerbated because their various medical conditions and the pharmaceuticals prescribed to them to treat those illnesses inhibit Plaintiffs' abilities to thermoregulate (i.e., regulate their body temperatures). Id. at 666. The evidence established that Defendants had knowledge of the substantial risk of serious harm that the extreme heat posed to Plaintiffs and that Defendants nevertheless failed to take any remedial action to protect them, thereby disregarding the substantial risk of serious harm to Plaintiffs' health and safety. Id. at 672-73, 679. Accordingly, the Court enjoined Defenda nts to "immediately develop a plan to reduce and maintain the heat index in the Angola death row t iers at or below 88 degrees." Id. at 689. Defendants' initial Heat Remediation Plan proposed that, in addition to providing Plaintiffs with a daily cold shower and access to ice and cold drinking water, air-
988 F. Supp. 2d 639, 687 (M.D. La. 2013), aff'd in part, vacated in part, remanded, 792 F.3d 584 (5th Cir. 2015). The denial of those claims was affirmed on appeal. See Ball, 792 F.3d at 598.
3

conditioning systems would need to be installed in each of the death-row facility's eight tiers in order to maintain the heat indices in all of the tiers at or below 88 degrees. (Doc. 118).
Defendants appealed. (See Doc. 176). The United States Court of Appeals for the Fifth Circuit affirmed this Court's finding that Defendants had subjected Plaintiffs to conditions of confinement that violate the Eighth Amendment by "housing these prisoners in very hot cells without sufficient access to heat-relief measures, while knowing that each suffers from conditions that render him extremely vulnerable to serious heat-related injury." Ball, 792 F .3d at 596. The Court of Appeals, however, held that the scope of the Court's injunction violated the Prison Litigation Reform Act ("PLRA"), 18 U.S.C. § 3626. Ball, 792 F.3d at 598. The Court of Appeals held that this Court erred, first, by "order[ing] a type of relief - air conditioning- that is unnecessary to correct the Eighth Amendment violation" and, second, by "award[ing] relieffacility-wide, instead oflimiting such relief to Ball, Code, and Magee." Id. at 599. The Court of Appeals held t hat under the PLRA, a district court may only order injunctive relief th at "extend[s] no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs," suggesting that "there are many acceptable remedies short of facility-wide air conditioning":
For example, the Defendants could divert cool air from the guards' pod into the tiers[,] a llow inmates to access air conditioned areas during their tier time[,] allow access to cool showers at least once a day[,] provide ample s upply of cold drinking water and ice at a ll times[,] supply personal ice containers a nd individual fans[,] and install additional ice machines. Id.
4

Accordingly, the Court of Appeals vacated t his Court's injunction, id. at 600, and rem a nded the proceedings, instructing the Court to "limit its relief to these types of re medies," id. at 599.
As a result, the Court ordered Defenda nts to submit a new plan to a melior ate the Eighth Amendment violation th at would be consistent with the opinion of the Court of Appeals. Defendants submitted their Second Heat Remediation Plan on October 23, 2015, (Doc. 25 1), which s ubsequently was revised on April 8, 2016, (Doc. 299) (collectively, "Second Plan"). Under the Second Pla n, Defe nda n ts (1) installed two water-valve controllers in t he showers on each tier , which allow inmates to select between hot and cold water for their daily, fiftee n-minute showers; (2) provided one three-gallon ice container and a smaller ice container that is designed to hold six twelve-ounce cans, both of which were reple nished with ice by staff or orderlies during their shifts from the death-row facility's existing ice m achine a nd/or an addi tion al ice machine th at Defenda nts subsequen tly purchased and installed; a nd (3) installed a dditional fa n s to e nsure that each Pla intiff was provided a fan of his own. (See Docs. 25 1, 299). In response to the suggestion of the Court of Appeals th at conditioned a ir be diverted from the guards' pod to a tier in which Plaintiffs a re confined, Defendants asser ted t h at doing so would cause the premature mech a nical fa ilure of the deathrow facility's air-conditioning system due to the system's ina bility to ha ndle such a n increased load. (Doc. 25 1 at p. 2). Additionally, Defendants asserted that diverting conditioned a ir from the guards' pod would cause the humid, outdoor air to be pulled into the pod due to the resulting negative a ir balance, thereby causing water damage
5

to the pod and rendering the building susceptible to mold growth . (Id. at p. 3). Finally, Defendants claimed that in order to divert the conditioned air from the guards' pod to the tier - as suggested by the Court of Appeals - the door connectin g the two a reas of the structure would be required to remain open, creating security concerns. (Jd .).
On lVIay 16, 2016, Plaintiffs filed the present Motion to Modify Injunctive Relief, urging the Court to enjoin Defe nda n ts to implement their initial Heat Remediation Pla n, which called for the installation of a facility-wide air-conditioning system to maintain the heat indices in the death-row tiers at or below 88 degrees. (Doc. 315). Plaintiffs argue t ha t because the heat indices in the death-row tiers rose above 88 degr ees in spite of the measures implemented pursua nt to Defendants' Second Plan, Plaintiffs remain exposed to a substantial risk of serious harm due to the conditions of extreme heat, a nd t he Second P lan t hus has prove n to be insufficient to remedy the Eighth Amendmen t violation found by this Court a nd affirmed on a ppeal. (Jd .). Pla intiffs assert that "Defe nda nts' failure to propose an effective remedy," after being given wide latitude and a full opportunity to do so, demonstrates that "this Court's original injunction was a necessary, narrowly-tailored, a nd nonintrusive remedy." (Doc. 315-1 at p. 7). Defendants oppose t he Motion, ar guing th at the Cour t of Appeals vacated this Court's finding that exposing Plaintiffs to heat indices in excess of 88 degrees places the m at substantial risk of serious harm. (D oc. 318 at p. 4). Defendants assert t hat because the Court of Appeals held th at airconditioning was an unnecessary remedy to ameliorate the Eighth Amendment
6

violation and the only mechanism to lower the heat indices in the death-row tiers below 88 degrees is mechanical air-conditioning, the 88-degree be nchmark was vacated by the Court of Appeals. (Id.). Thus, Defendants contend, the only remedies t hat are necessary to correct the Eighth Amendment violation a re those endorsed by the Court of Appeals in Gates u. Cooll, 376 F.3d 323 (5th Cir. 2004), namely, the provision of cold s howers, ice, and a dditional fans. (Id. at p. 6). Because Defendants have provided such "Gates-type" r emedies, Defendants' argument follows, the Eighth Ame ndment violation h as been sufficient ly re medied. (Id . at pp. 6-7).
II. FINDINGS OF FACT The followin g findings of fact a re uncontroverted or supported by the evidence
in the record. If a particula r fact was con trover ted, the Court weighed the evidence a nd determined that the evidence presented by t he party supportin g t hat fact was more persuas1ve.
A. Defe ndants' Second Plan 1. Defendants' Second Plan consist s of (1) the installation of two water-valve
controllers in the shower s on each tier, which allow inmates to select between hot a nd cold wa ter for t heir daily, fiftee n-minute showers; (2) t he provision to each Pla intiff of one three-gallon ice container and a sm a ller ice container that is designed to hold six twelve -ounce ca ns, both of which a re to be replenished with ice by sta ff or orderlies during their shifts from the death-row facility's preexistin g ice machine and/or a n additional ice machine t hat Defendants
7

subsequently purchased and installed; and (3) the installation of additional fans to ensure that each Plaintiff is provided a fan of his own. (Docs. 251, 299). 2. The provision of a daily, fifteen-minute cold shower, standing a lone, does not sufficiently reduce the substantial risk of serious harm to Plaintiffs. A brief cold s hower may provide temporary relief to Plaintiffs, but such relief is limited to the time that Plaintiffs spend in the shower and a brief period afterward. Once Plaintiffs exit the shower, they are again exposed to a substantial risk of serious harm due to the conditions of extreme heat present in the death-row tiers. The Court heard compelling, uncontroverted testimony from Dr. Susan Vassallo, M.D.- who has been on the faculty of the New York University School of Medicine since 1983; is an attending physician in emergency medicine at Bellevue Hospital Center in New York, New York; is a certified correctional health professional; and is an expert on the effects of drugs and illness on an individual's ability to thermoregulate - regarding the effectiveness of the measures implemented under Defendants' Second Plan. Regarding the provision of a daily, fifteen-minute cold shower to Plaintiffs, Dr. Vassallo testified that "a fifteen-minute shower out of twenty-four hours a day, in these temperatures, [is) absolutely not a safety measure." (Doc. 346, Hr'g Tr. at p. 141, ll. 1-3). Citing scholarly studies, which reported that there is no statistically significant value to providing a brief cold shower under similar conditions, Dr. Vassallo explained that as the cold shower water on Plaintiffs' skin evaporates following their showers, "to the extent t hat [their skin] is able
8

to cool, give n the humidity in the air, the individua ls for that period of t ime will feel cooler." (Id. at p. 87, l. 25; id. at p. 88, 11. 1-3). However, Dr. Vassallo continued: "[B] y the time t he evaporative cooling is completed, the story is over. The [cooler] temperature is no longer a nd t hat individual will be ... s ubjected for a nother t we nty-three hours and forty-five minutes to the h eat ind[ices] th at a re existing at the Louisiana State [Penitentiary] cells where these folks here are being confined." (Id. at p. 140, ll. 19-25). 3. Plaintiffs similarly testified, from a layman's perspective, regarding the ineffectiveness of cold showers . Plaintiff Code testified that because it is "very hot" in the showers, t he cold showers offer the limited benefit of providing him time to dry and clothe himself before his body begins to perspire again due to the extreme heat. (Id . at p. 47, l. 5). Plaintiff 1\tlagee testified t hat the cold showers help relieve some of his heat-related symptoms, but merely while he is taking a shower. (Id. at p. 58, l. 8). 4. The provision of a cold shower for as long as one hour, standing alone, is similarly ineffective at reducing the s ubstantia l risk of serious harm to Plaintiffs . Even if Plaintiffs were permitted to remain in the shower for one hour, the conditions of extreme heat prese nt in the death-row tiers continue to place Plaintiffs at risk during t he remaining twenty-three-hour period of the day after the evaporative cooling from t he showers has ceased. Dr. Vassallo testified that an hour-long cold shower would not reduce the risk of heat stress to Plaintiffs: "The reason is . .. that the other twenty-three hours where they're
9

sitting under those condition s, environmen tal conditions [t ha t] have bee n well described, are long a nd da ngerous. One hour ou tside of th at condit ion [by providing a one-hour cold shower] is insufficien t to protect - to be protective." (ld. at p. 167, 11. 1-7). 5. The use of fa ns in conditions of extreme heat s uch as those present in the dea th-row tiers, standing alone, does not sufficiently reduce the substantial risk of serious harm to Plaintiffs . Dr. Vassallo testified to a clear scientific con se nsus "that fans a re not protective" when they a re utilized in "the kinds of heat indices that we see on death row whe re t hese ge ntlemen a re . .. incarcerated." (I d. at p. 77, ll. 17-19). For exa mple, Dr. Vassallo cited a clear scientific co nse nsu s t hat a t temperatures of 90 degrees with humidity of 35%, "there was absolutely no protection from fa ns." (Id. at p. 79, ll. 5-6). On the con tr a ry, the use of fa ns in such conditions may increase t he risk of harm to Plaint iffs because, according to Dr. Vassallo, "there is a temper a ture at which when you start to blow hot air across the skin, there's simply an increase in hea t stress." (I d. a t p. 78, ll. 17-20). 6. The regula r provision of ice in the 1ce con tainers provided to Plaint iffs, sta ndin g alone, does not sufficien tly reduce the substant ial risk of serious ha rm to Plaintiffs. Dr. Vassallo testified t hat in her thirty years of experience as a clinician , she had never seen evidence t hat a heat stroke was preven ted by a perso n's having "ice in t heir drink or icc in t heir cooler." (Id . a t p. 95, 1.
25).
10

7. Addit iona lly, the provision of a n unlimited amount of ice, coupled with a con tainer that would permit Plaintiffs to lie clown in and become encased in t he ice, is not a worka ble remedy. Although such a configuration is used by medical professiona ls to t reat patients who already have suffered a heat stroke, Dr. Vassallo testified that because of t he "degree of pain and discomfort associated with t hat .. . as soon as our [heat stroke patients are] conscious, th ey h ave to come out of that ice bath." (Jd. at p. 161, ll. 3-8). Furt her , Dr. Vassallo testified that the benefits of such an ice bath would "only lastO for the period" in which a person is immersed in the ice, (id. at p. 161, l. 23), a nd that a configuration in which Plaintiffs were immersed in an ice bath for twentyt hree to twenty-four h ours a clay "would be intoler able fo r them . .. a nd, also, absolutely unimaginable," (id. at p. 162, 11. 1-2).
8. During the implementation of the Defendants' Second Plan, the heat indices in each tie r in which Plaintiffs were confined rose above 88 degrees. During th e impleme ntation of the Second Plan, Plaintiffs were confined on Tiers B, F, a nd G. (Doc. 339 at p. 1). In the period between May 12, 2016, and June 10, 20 16 - during which Defe nda nts had implemen ted the measures under the Second Pla n - heat indices exceeded 88 degrees on three days in Tier B, eight days in Tier F, a nd five days in Tier G. (See Doc. 328 at p. 2; Doc. 339-2; Doc. 339-6; Doc. 339-7).
9. Plaint iffs suffer from cer tain medical conditions a nd take certain prescription medications that place the m at a n increased risk for heat-related illness.
11

Plaintiff Ball suffers from diabetes, hypertension, venous insufficiency, and hyperlipidemia; regarding medication, Ball takes Lasix, Claritin, potassium, Keppra, Tenormin, Cozaar, Norvasc, metformin, ins ulin, and Zocor. (Doc. 346, Hr'g Tr. at p. 19, 11. 11-20). Plaintiff Code suffers from hypertension, Hepatitis C, and hypothyroidism; regarding medication, Code takes Synthroid, Cozaar, and amlodipine. (!d. at p. 19, 11. 21-25). Plaintiff Magee suffers from depression, Hepatitis C, and hyperlipidemia; regarding medication, Magee takes Remeron, Catapres, fluoxetine, Norvasc, and cholestyramine. (Id. at p. 20, ll. 1-5; see id. at p. 223, 11. 16-18). Dr. Vassallo, who had reviewed the medical records of a ll Plaintiffs and was familiar with all of Plaintiffs' medical conditions, (id. at p . 100, 11. 8-12), testified that "the conditions and the ... medication that [Plaintiffs are] receiving for those conditions interfere with the ability to respond to heat," (id. at p. 126, 11. 20-23). 10.Plaintiffs continued to experience heat-related symptoms during the implementation of Defendants' Second Plan. Plaintiff Code testified that during the implementation of the Second Plan, he continued to experience periods of prolonged dizziness and "profuse perspir[ation]." (Id. at p. 43, 1. 8). Plaintiff Magee testified that during the implementation of the Second Plan, he experienced the "same [symptoms] that [he] had before," namely, dizziness, nausea, and perspiration. (Id. at p. 54, l. 23). Plaintiff Ball testified that during the implementation of the Second Plan, he experienced the "normal every year symptoms that [he experiences] when it start[s] to get hot." (Id. at
12

p. 60, 11. 18-19). Specifically, Ball testified that he continued to experience "headaches," which resemble "passing out almost," (id. at pp. 61, 11. 4-5), as well as "tingling" and "pain" in his fingers and his feet, a sensation that Ball described as "like ... someone was beating [his finger] wit h a ha mmer," (id. at p. 60, ll. 18-23). 11. The measures implemented pursuant to Defenda nts' Second Plan do not , either individua lly or in com bination, sufficiently reduce the substantial risk of serious h arm to Plaintiffs as a result of their exposure to the conditions of extreme heat prese nt in Angola's death-row tiers. When asked whether t he measures implemented pursuant to the Second Plan - the installation of a dditiona l fans, the provision of two ice containers so that Plaintiffs have increased access to ice, and the availability of a fifteen-minute cold showerremoved the s ubstantial risk of serious harm to Plaintiffs as a r esult of the conditions of extre me heat to which they are exposed in th e death-row tiers, Dr. Vassallo unequivocally answered, "Absolutely not." (Id. at p. 96, l. 24). ·when asked whethe r the measures imple mented purs uant to the Second Plan can be used to lower a n individual's elevated body temper ature, Dr. Vassallo responded: "I completely disagree with that. And I h ave thirty years of clinical experience trying to lower a body temperature. And I can tell you 100 percent t hat will not work." (Id. at p. 162, ll. 14-17). 12. The only s ufficie nt means to reduce the s ubstantial risk of serious harm to Plaintiffs as a result of t heir exposure to the conditions of extreme heat present
13

in Angola's death-row tiers is to lower the temperature and heat indices to which Plaintiffs are exposed. According to Dr. Vassallo: "The temperature and the heat index [are] the risk here. That is the cause of risk. To remove t he risk, the temperature has to be lowered." (Id. at p . 97, 11. 3-5). Dr. Vassallo testified unequivocally t hat "in [her] expert opinion, [she did] not have any other idea . . . how to protect th ese prisoners other than to reduce the te mperature," (id. at p. 147, ll. 9- 12), and th at the "[Second P]lan does not do that," (id. at p. 74, ll. 15-16). 13. The risk of serious harm due to exposure to conditions of extreme heat significantly increases when an individual is exposed to heat indices of 88 degrees or greater. Dr. Vassallo testified that, according to the findings of a recent study published in February 2016, "hospita lizations [due to heat-related illnesses] take a rather abrupt increase at the [mean] heat index . .. of 32 degrees [Celsius]." (Id. at p. 121, ll. 5-7). Thirty-two degTees Celsius equates to 89.6 degrees Fahrenheit. (Id. at p. 123, ll. 22-23). Given t he information contained in that study, along with her previous findings, Dr. Vassallo concluded that the "number of 88 degree[s] is a reasonable and scientifically . . . substantiated number" as a benchmark for the heat index at which individuals are subjected to a substantial risk of serious harm due to heatrelated illness, (id. at p. 124, ll. 20-22), the same benchmark that t he National V\Teather Service sets as the "top number in caution range," (id. at p . 129, ll. 14-15).
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B. Defendants' Additional Remedial Measures Implemented Subsequent to the Implementation of the Second Plan (Defendants' "Third Plan")
1. At some time around June 26, 2016, Defendants implemented remedial measures in addition to those implemented pursuant to Defendants' Second Plan (collectively, "Third Plan"). (Doc. 369, Hr'g Tr. at p. 15, ll. 8-10).
2. Under the Third Plan, Defendants (1) moved Plaintiffs to Tier C, which was otherwise unoccupied; (2) assigned Plaintiffs to the three cells closest to the door that connects the tier to the guards' pod (e.g., cells C-1, C-2, and C-3); (3) installed a 27" x 34" air vent in the door that connects Tier C to the guards' pod, a llowing conditioned air from the guards' pod to flow into Tier C; (4) installed a "curtain" constructed of heavy plastic between cells C-4 and C-5, in an attempt to keep the n ewly diverted cool air from escaping to the areas of Tier C in which neither Plaintiffs nor any other inmates were confined; (5) provided each Plaintiff with an individual cooling mechanism, commonly referre d to as an "IcyBreeze unit" or a "Cajun cooler," which esse ntially consists of an ice chest, a fan, and a duct that- when t he ice chest is filled with ice and the fan is powered on- emits cool air; (6) installed a water-valve controller in the showers on Tier C, which allowed Plaintiffs to select between hot and cold water for their daily, fifteen-minute showers (a continued measure from the Second Plan); (7) provided to each Plaintiff one three-gallon ice container and a smaller ice container t hat is designed to hold six twelve-ounce cans, both of which were replenished with ice by staff or orderlies during their shifts from
15

t he death-row facility's preexisting ice machine a nd/or a n additional ice machine th at Defenda nts subsequen tly purchased and installed (a con tinued measure from the Second Pla n); a nd (8) installed additional fans to ensure that each Plaintiff was provided a fa n of his own (a continued measure from the Second Plan). (Doc. 360 at p. 3). The Court only learned of the addit ional measures imple mented under the Third Plan through communication with the Special Maste r appointed in this case, Paul J. Hebert. Although both pa rties expressed to Special Master Hebe rt their desire to withhold from the Court t he details regarding the specific measures implemen ted pursua n t to th e Third Plan, in spi te of the fact that those measures were appare ntly successful in remedying t he constitutional violation, Special Mas ter Hebert disclosed to the Court t he additional remedial actions that were implemen te d by Defenda nts, testifying that he "felt it was a n obligation on [his] part to advise t he Court that the prisoners were in a situation that did not continue to ... subject [them] to t he conditions which amounted to the constitutional violation." (Doc. 369, Hr'g Tr. atp. 18, ll. 7- 12). 3. The IcyBreeze units emit ali· that measures approximate ly 57.8 degrees in temperature. (Doc. 374 at p. 2). 4. In ord er to maintain the temperature of the air e mi tted from the IcyBreeze units at a cool level, the ice-chest portion of the unit must be filled with ice and t he ice must be replenished regularly. (Doc. 375, Hr'g Tr. at p. 20, 11. 11-15).
16

5. The IcyBreeze units were positioned in the corridor outside of each Plaintiffs cell, approximately twelve inches from the bars of each celP (Id. at p. 12, 11. 22-23). According to the testimony of Shane M. Hernandez - a professional enginee r who, in conjunction with Special Master Hebert, was retained by the Court to evaluate the measures implemented purs uant to Defendants' Third Pla n - a person who is in "close proximity" to the IcyBreeze unit is able to feel the cool air being emitted, but a person who is "more than ... five feet away" cannot. (ld. at p. 27, 11. 18-20).
6. IcyBreeze units are effective at lowering the temperature of a small space, but do not reduce the humidity level in that space. (Id. at p. 29, ll. 11-14).
7. The installation of the 27" x 34" air vent in the door connecting Tier C to the guards' pod permitted the conditioned air in the gua rds' pod to flow into Tier C. Accord ing to Mr. Hernandez's testimony, Tier Cis a "highly negative space" in terms of air pressure, which caused the conditioned air in the guards' pod to flow through the air vent and into the space in which Plaintiffs were confined. (Id. at p. 16, 11. 13-15). The conditioned air subsequently exited the structure through the tier's exhaust system. (ld. at p. 16, 11. 18-19).
8. The co nditioned air that flowed into Tier C from the guards' pod via the air vent reduced th e humidity in the area in which Plaintiffs were confined. Mr. Hernandez testified that when he inspected the death-row facility, he did no t
a As of the date of this Ruling a nd Order, the Court does not possess inform ation regarding the locations a nd cell assignments of Plaintiffs . The Court proceeds under the assumption that Plaintiffs are no longer bei ng confined in Tier C and are not being availed of the remedial measures implemen ted under Defe ndants' Third Plan due to the seasona l cha nges in weather.
17

take a ny humidity measuremen ts, but noticed th at when comp a ring Tier Cwhich ha d conditioned air flowing into it from the gua rds' pod t hrough the air vent - to Tier H- which is located on the opposite side of th e death-row facility a nd did not h ave a n a ir vent connectin g it to t he gua rds' pod - the difference between "the humidity levels w (as] very drastic." (l d . at p. 10, ll. 23). Mr . Hernandez testified tha t he "could tell tha t the rela tive humidity was probably somewher e in t he 60 percent ra n ge" in Tier C; in con tras t, Mr. Hernandez estim ated t hat the humidity level in Tier H was betwee n 70% a nd 90%, which rou ghly "matched [the humidity level] outside." (l d. at p. 10, 11. 24-25; id. a t p. 11, ll. 2-4). In sum, Mr. Herna ndez testified t hat "Tier C was much more comfortable." (l d. a t p. 10, 11. 23-24). 9. While all of the measures of the Third Pla n were implemen ted, t he temp erature inside the control cen ter in t he a ir-condit ioned gua rds' pod was measu red to be 73. 1 degrees. (Doc. 374 a t p. 2). 10. vVhile a ll of t he me asures of the Third Pla n were implemente d, the te mperature inside the corridor in t he a ir-conditioned gua rds' pod was measured to be 76.2 degrees. (Jd .). 11. While a ll of the measures of the Third Pla n were implemen ted, the temper ature in fr on t of cell C-3- in which one of the Plain tiffs was confined was measured to be 78.5 degr ees. (Jd.). 12. While a ll of the measures of the Third Pla n were impleme n ted, the heat index in the por tion of Tier C in which Plain tiffs were confined rema ined below 80
18

degrees. Specia l Master Heber t testified that aside from the first two days in which the Third Plan was implemented, the heat indices in the portion of Tier C in which Plaintiffs were confined "hardly approach[ed] 80 degrees." (Doc. 369, Hr'g Tr. at p. 23, l. 5). 13. In t he period between July 7, 2016, a nd August 31, 2016 - during which the heat index re mained below 80 degrees in the portion of Tier C in which plaintiffs were co nfined- the h eat index reached or exceeded 100 degrees in each of the other tiers of t he death-row facility on at least six, a nd as many as t hirty, days . The heat index reached or exceeded 100 degrees on twenty clays in Tier A, six days in Tier B, twenty-three days in Tier D, thirty days in Tier E, twenty-three days in Tier F, nineteen days in Tier G, a nd eighteen days in Tier H. (Doc. 376). 14.Although the fans installed by Defe nda nts in t he portion of Tier C in which Plaintiffs a re confined, standing alone, do not reduce the s ubstantial risk of se rious h a rm to Plaintiffs because the fans do not r educe the temperature of the space, whe n used in conjunction with the IcyBreeze units, the fans help cil:culate the cool air that the IcyBreeze units emit. Frank Thompson , a professional e ngineer who specializes in HVAC systems a nd is the designer of record for th e death-row facility, testified that th e fans provided to Plaintiffs do not lower t he te mperature, but rather "are just circulating air in t he space." (Doc. 346, Hr'g Tr. at p. 244, ll. 13-14). Given t he testimony of Mr. Hernandez th at a person who is "more t ha n ... five fee t away" ca nnot feel the cool a ir
19

being emitted from t he IcyBreeze units, (Doc. 375, Hr'g Tr. at p. 27, l. 19), a nd t he fact that Pla intiffs' cells meas ure more than five feet in depth, (see id. at p. 27, l. 24), the fa ns provided to Pla intiffs aided in circulating the cool air that is emitted from the IcyBreeze units to broader a reas of Pla int iffs' cells in Tier C. 15. Providing icc to Plaint iffs, when it is provided in conjunction with the other measures imple mented under Defenda n ts' Third Pla n, is a huma ne m easure. Dr. Vassallo described the desire for ice as a ma tter of huma n instinct whe n a n individua l is hot: "It's about being huma ne . .. . We wa nt ice when we're hot." (Doc. 346, Hr'g Tr. at p. 153, 11. 8 -9). 16. Providing Pla intiffs access to daily cold showers reduces the s ubstantial risk of serious h a rm to Plaintiffs while they a re in the shower a rea, re moved from t heir individua l l cyBreeze units. The individual lcyBreeze units were positioned in the corridor outside of each Plaintiffs cell, approximately twelve inches from t he bars of each cell. (Doc. 375, Hr'g Tr. at p. 12, ll. 22-23). Plaintiffs thus did not have a ccess to the l cyBreeze units in the shower area because the units were located directly in front of their cells . (See id.). A cold sh ower , however, ca n produce evaporative cooling during t he shower a nd the brief time following the shower , (see Doc. 346, Hr'g Tr. at p. 140, ll. 18-21), which can protect Plaintiffs from t he s ubstantial risk of serious harm while they are removed from the IcyBree ze units for the purpose of bathing themselves.
20

17.The measures implemented pursuant to Defendants' Third Plan sufficiently reduce the substantial risk of seriou s harm to Plaintiffs due to t he conditions of extreme heat to which they a re exposed in the death -row tiers at Angola. Expert testimony established that the risk of serious h a rm due to heat-related illness dramatically increases when the heat index exceeds 88 degrees, (see id. at p. 124, 11. 20-22), and that the only way to remove the risk is to lower the temperature a nd heat index, (see id. at p. 97, ll. 3-5). The measures implemen ted under the Third Pla n, collectively, lowered the heat index in the portion of Tier C in which Plaintiffs were confined below 80 degrees, (Doc. 369, Hr'g Tr. at p. 23, 11. 3-5), while the tiers that did not benefit from the remedial measures exhibited heat indices of over 100 degrees on multiple days, (Doc. 376). This reduction of the heat indices to levels below 88 degrees sufficiently r educes th e substantial risk of serious ha rm to Plaintiffs . (See Doc. 346, Hr'g Tr. at p. 124, ll. 20-22).
18. The total cost of implementing all of the measures purs uant to the Third Plan was less than $2,000. (Doc. 369, Hr'g Tr. at p. 23, ll. 19-21). Specifically, the cost of t he plastic "curtain" was $785.40, a nd the cost of t he IcyBreeze uni ts was $5 19.95. (I d. at p. 26, 11. 15-17). Testimony established that the total cost of impleme nting all of the meas ures was less than $2,000. (Id. at p. 23, ll. 1921).
19. The costs of alternatives to the Third Pla n vastly exceed $2,000. The cost of installing a mecha nical system that would provide "neu tral air" solely in the
21

portion of Tier C in which Plaintiffs were confined, in order to create balanced air pressure between that portion of Tier C and the guards' pod, would be approxim ately $75,000 to $100,000. (Doc. 375, Hr'g Tr. at p. 22, l. 24). The cost of installing a mechanical system that would provide "neutral air" in the entirety of Tier C, in order to create balanced air pressure between Tier Cas a whole and the gua rds' pod, would be approximately $250,000 to $300,000. (Id. at p. 22, 11. 8-10).
C. Potential for Mold Growth as a Result of Defendants' Third Plan
1. Due to the design of the IcyBreeze units, the cool air that is emitted from the units does not contain any water vapor, a nd therefore the l cyBreeze units do not contribu te to any moisture- or condensation-related problems in the portion of Tier C in which Pla intiffs were confined. It appears th at, according to l\IIr. Herna ndez's testimony, "the IcyBreeze unit is a sealed heat exchanger," and thus the unit's fan is not "able to capture ... liquid." (Jd. at p. 13, 11. 7-10). Upon inspecting the lcyBreeze units a nd Plain tiffs' cells, Mr. Hernandez did not obse r ve any moisture at the base of the unit, on the s tee l bars of Plaintiffs' cells, or on any of Plaintiffs' belongings inside their cells . (ld. at p. 12, 11. 1925; id. at p. 13, 11. 1-2). There was some condensation a round the ducts that emit cool air from the IcyBreeze units, "but not much." (ld. at p. 12, 11. 17-19).
2. Because the materials from which Tier C was constructed are not conducive to mold growth, mold-related problems are not likely in the portion of the tier in which Plaintiffs were confined. The tier was constructed from nonor ganic
22

materials, such as steel and concrete, upon which it would be "very, very difficult" for mold to grow because, according to Mr. He rnandez, s uch m ateria ls do not "act as food." (ld. at p. 14, 11. 12- 13). 3. Due to the installation of the air vent in the door connecting Tier C to the guards' pod - and the consequentia l flow of conditioned a ir from the guards'
pod to Tier C through the air vent - humid, outdoor air had begun to infiltrate
t he gua rds' pod during t he implementation of the Third Plan. According to Mr. Hern a ndez, the "sucking action" created as a result of the conditioned air's
flowing from the guards' pod to Tier C through the air vent "ca use [s] humid air to go t hrough t he exterior walls of th e a ir conditioned area." (I d . at p . 16, l. 25; id. at p. 17, 11. 1-2).
4. The infiltration of humid, outdoor a ir increases the potential for mold growth in the gua rds' pod, and the areas behind the walls of the guards' pod are at the highest risk for mold growth. According to Mr. Hernandez, the "potential for mold growth would probably be in concealed s paces behind the walls." (ld. at p. 26, 11. 10-11) .
5. Organic m aterials, which are conducive to mold growth, were utilized to construct the guards' pod. Mr. H ernandez tes tified that s uch or ganic material acts as "food for the mold." (Id. at p. 41 , 1. 6).
G. The re is no certainty that mold gr ow th will resul t from the infiltration of humid, outdoor a ir into the guards' pod. According to Mr. H ernandez, "it's ques tionable whether or not [mold growth] would happe n or occur." (ld. at p.
23

17, 11. 4-5). Mr. Hernandez reiterated that he could not "guarantee that there'll be mold growth," (id. at p. 39, 11. 17- 18), and testified that there simply was a "potential for mold growth," (id. at p. 39, 11. 21-22). 7. The death-row facility currently exhibits no evidence of mold growth. Mr. Hernandez testified that he "did not observe any kind of mold growth . .. at all in the facility" during his investigation, (id. at p. 26, 11. 15-16), and repeated later that he "did not see any evidence whatsoever of mold," (id. at p . 39, l. 25). D. Potential Alterations to Defendants' Third Plan in the Event of
Mold Growth 1. Sealing the Air Vent in the Door Connecting Tier C to the
Guards' Pod 1. Ifprison officials sealed the air vent in the door connecting Tier C to the guards'
pod, the potential for mold growth in the guards' pod would be reduced or perhaps eliminated. Sealing the air vent would return the death-row facility "to the original condition," according to Mr. Hernandez, in which no conditioned air from the guards' pod would be diverted to Tier C, and humid, outdoor air thus would not infiltrate the guards' pod. (Id. at p. 17, 11. 11-12). 2. If officials sealed the air vent, however, the heat indices in the portion of Tier C in which Plaintiffs were confined would rise. Mr. Hernandez testified that if officials sealed the air vent, the lower heat indices in the portion of Tier C in which Plaintiffs were confined could not be maintained without an additional cooling mechanism. (Id. at p. 20, ll. 8-10).
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3. In the event th at officials sealed t he a ir vent, additional l cyBreeze units could be installed in the portion of Tier C in which Plaintiffs were confined in order to attempt to maintain the h eat indices at the same levels that prevailed with the a ir vent open. "If you add a ddit ional l cyBreeze units," Mr. Herna ndez testified, "I think you can overcome t he cooling from the ventilation." (Id. at p. 37, 11. 20-2 1).
4. Even if additional IcyBreeze units were introduced into the portion of Tier C in which Plain tiffs were confined in the eve nt that officials sealed the air vent, the humidity in the space would rise because the IcyBreeze units have no effect on the humidity level of a space. Mr. Herna ndez testified th at in t he event that officials sealed the air vent a nd additional IcyBreeze units were installed, "the temperature would come down," but "the humidity would rise." (Id. at p . 45, ll. 19-20). The elevated humidity would necessitate the installation of additional IcyBreeze units to lower the te mper ature to a level that, after factoring in the elevated humidity, resembled the heat-index level of the space prior to the sealing of the air ve nt. Mr. Hernandez testified that in order to maintain the heat indices at the levels that prevailed with the air vent ope n, "you would [have to] a ttackO or addressO the temperature to try to get the temperature down to where ... your perceived temper ature wouldn't be as hot." (Id. at p . 45, 11. 21-24).
5. Although the precise number of IcyBreeze units that would be necessary to maintain the lower heat-index levels in the portion ofTier C in which Plaint iffs
25

were confined in the eve nt that officia ls sealed the au· vent cannot be determined, the number that would be required does not appear to be impracticable. In the estimation of Mr. Hernandez, it would not "take that many" additional IcyBreeze units to achie ve the desired result. (Id. at p . 38, 1. 2) . 6. Additionally, an existing louver on the far end ofTier C, as far away as possible from the portion of Tier C in which Plaintiffs were confined, could be opened in an attempt to limit the amount of cool air emitted by the IcyBreeze units that exits the tier through the tier's exhaust sys te m. This action would consist of merely opening an existing window. (Jd. at p. 18, 11. 18-22). 7. If officia ls sealed the air vent in the door connecting Tier C to the guards' pod due to the proliferation of mold growth in the gua rds' pod, it neverth eless is probable that the substantial risk of se rious harm to Plaintiffs could sufficie ntly be reduced by the introduction of additional IcyBreeze units and the opening of a louver in Tier C as far as possible from the portion of the tier in which Plaintiffs were confined. Such a configuration, according to Mr. Herna ndez, "has a high potential of success." (Id. at p. 19, 11. 9-10).
2. Decreasing the Size of the Ail' Vent in the Do01· Connecting Tier C to the Guards' Pod
1. Decreasing the size of the air vent in the door connecting Tier C to the gu ards' pod wou ld not appreciably reduce the potential for mold growth in the guards' pod. Mr. Hernandez testified that initially, reducing the size of the air vent merely will "incre ase the velocity of the air coming through." (Jd. at p. 23, 1.
26

25; id. at p. 24, l. 1). While t he flow of air t hrough the air vent eve nt ually may decrease if officials reduced the size of the air ve nt, Mr. Herna ndez testified t hat the "negative effect" in the gua rds' pod would re main a nd t hat the humid, outdoor air would cont inue to infiltr at e t he guards' pod, thereby presen ting a poten tia l for mold growth. (Jd. a t p. 24, ll. 9-11).
III. DISCUSSION The measures impleme nted purs ua nt to Defenda nts' Second Plan fail to
remedy the E igh t h Amendment violation, and Fifth Circuit precedent does not limit this Co urt solely to those measures when fas hioning injunctive relief. The measures implemen ted pursuant to Defendants' Third Pla n , however, sufficiently remedy the constitu tional violation , and an injunction requirin g t hat Defenda n ts cont inue to implemen t those measures complies wit h the limitations on injunctive relief imposed by both the PLRA a nd the Court of App eals. Although Defenda nts voluntarily implemen ted the measures under the Third Pla n and those voluntary measures remedy t he constitutional violation, the Court finds t ha t the issuance of an injunction nevertheless is necessary because there is a cognizable da nge r that Defendants, in t he abse nce of a n injunction, may rever t to measures t hat will cause th e recurrence of t he constitu tion al violation.
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A. Defend a n ts' Third Plan Sufficien tly R educes t h e Substantial R is k of Serious H arm to Plaintiffs, Is Narrowly Draw n, a nd Is the Least I ntrusive Means to Correct the Eigh t h Amendment Violation
Pur uant to the PLRA, the Court may order injunctive relief to remedy a constitutional violation "with respect to prison conditions," but the injunctive r elief that this Court fashions "shall extend no further than necessary to correct the violation of t he Federal right of a particular plaintiff or plaintiffs." 18 U.S.C. § 3G26(a)(1)(A). Addit iona lly, the Court must find that the injunctive relief "is narrowly drawn, extends no further t h a n necessary to correct t he violation of the Federal right, and is t he least intrusive means necessary to correct the violation of the Federal right." Id. Further, this Court must "give substa ntia l weight to any adverse impact on public safety or the operation of a crimin al justice system caused by the relief," id., but "[c]ourts may not allow constitu tiona l violations to continue simply because a remedy would involve intrusion into th e realm of prison administration." Bro wn v. Plata, 563 U.S. 493, 511 (2011). Although "plaintiffs are not entitled to the most effective available remedy [,) they a re entitled to a remedy th at eliminates t he co nstitutional injury." Ball, 792 F.3d at 599.
The constitu tional injury in this case is the "housing [of] th ese prisoners in very hot cells without s ufficient access to heat-relief mea s ures," id. at 596, which was found by this Court a nd the Court of Appeals to place "these prisoners ... at a substantial risk of se rious h a rm ," id. at 594. Defenda n ts suggest t hat the measures impleme nted pursuan t to their Second Pla n - the installation of addition a l fa ns, t he provision of two ice con tainers so t hat Plaintiffs h ave increased access to ice, and t he
28

availability of a fifteen-minute cold shower - are all that is required in order to remedy the constitutional violation and to remove t hat s ubstan tia l risk. The Court heard compelling a nd uncontroverte d exp ert testimony, however, that these measures, whether standing alone or in combina tion, "absolutely" do not reduce the substantia l risk of serious h arm to Pla in tiffs due to the conditions of extreme heat present in Angola's death-row tiers . (Doc. 346, Hr'g Tr. at p. 96, 1. 24). The measures implemented pursua n t to the Second Plan are not remedies because Plaintiffs remain at substantial risk of serious harm in spite of those measures; the measures do not "eliminateD the constit utiona l injury." Id. at 599. On the cont ra ry, this Court heard expert testimony that one of the remedies - providing each Plaintiff with an individual fan - may even exacerbate the constitutional injury because of the increased heat stress on the body that results from "blow[ing) hot air across the skin." (Id. at p. 78, 11. 18-19). This exper t testimony is bolstered by the testimony of Pla intiffs themselves, who a ll testified that they continued to experie nce heat-rela ted symptoms during the imple mentation of Defe ndants' Second Pla n. (See id. at p. 43, ll. 2-8; id. at p. 54, 11. 23-25; id. at p. 60, ll. 18-24; id. at p. 61, 11. 4-6).
Nor, as Defendants suggest, is this Court limited in fa shioning injunctive relief to the measures implemented pursuant to the Second Pla n as a result of Fifth Circuit precedent. Defendants argue th at because the measures implemented pursuant to the Second Plan arc t he same m easures t hat t he Court of Appeals endorsed in Gates, these Gates-type measures are a ll that Defendants are required to implement, and Defendants assert th at a ny a dditional measures thus a re foreclosed by Fifth Circuit
29

precedent. That a rgume nt is misplaced, however. The Court of Appeals, in the opinion remanding this case back to this Court, suggested several potential remedial measures that exceed the measures ordered to be implemented in Gates, including "divert [ing] cool a ir from the guards' pod into the tiers" and "allowing inmates to access air condit ioned a reas during their tier time." Id. The Court of Appeals opined that "[t]hese are precisely t he types of remedies that t his court endorsed in Gates and
that the PLRA requires." Id. Thus, the interpretation of the Court of Appeals itself
is that re medial measures beyond th e provision of fans, ice, a nd cold showers do not conflict with Fifth Circuit precedent.
In sum, based on compelling exper t t estimony, the measures implemented under Defendants' Second Plan "absolutely" do not r educe the substantial risk of serious harm to Plaintiffs, (id. at p . 96, 1. 24), and Plaintiffs continued to experien ce heat-related symptoms during the implemen tation of the Second Plan, (see id. at p. 43, 11. 2-8; id. at p. 54, 11. 23-25; id. at p. 60, 11. 18-24; id. at p. 61, 11. 4-6). The only means to reduce the substantial risk of serious harm to Pla int iffs, and thereby remedy the Eight h Amendment violation in this case, is to lower the temper atures a nd heat indices to which Pla int iffs a re exposed. (Id. at p. 97, 11. 3-5; id. at p. 147, 11. 10-12). Defenda nts' Second Plan , according to expert testimony, "does not do that ." (Id. at p. 74, 11. 15- 16).
Defenda n ts' Third Pla n, on the other hand, lowers the heat indices to which Plaintiffs are exposed- thereby sufficiently reducing the substantial risk of serious harm to Plaintiffs and remedying t he Eighth Amendment violation - and is
30

consistent with both the limits that the PLRA places on injunctive relief and the s uggestions of th e Court of Appeals.
As a r esult of the measures imple me nted pursuant to the Third Pla n , both the temp eratures and heat indices to which Plaintiffs were exposed remained below 80 degrees. According to the testimony of Special Mast er Heber t, t he heat indices to which Plaintiffs were exposed "h ardly a pproach[ed] 80 degrees." (Doc. 369, Hr'g Tr. at p. 23, 1. 5). These heat indices were below t he 88-degree benchmark at which, as established throu gh expert testimony, the risk of serious ha rm due to heat-related illness dram atically increases. (Doc. 346, Hr'g Tr. at p. 124, ll. 20-22) . Thus, the implementation of t he Third Pla n , as Specia l Master Hebert testified, placed the "prisoners ... in a situation that did not continue to ... subject [them] to the conditions which amoun te d to the cons titutional violation." (Doc. 369, Hr'g Tr. at p. 18, ll. 9-12).
Not only do the measures imple mented pursuant to Defendants' Third Pla n remedy the constit utional violation, they are also consistent with the limitations of the PLRA a nd the suggestions of the Co urt of Appeals . First, the measures implemented under t he Third Pla n only afford relief to Plain tiffs and no other portion of the death-row pop ulation at Angola. See 18 U.S. C. § 3626(a)(l )(A) ("Prospective relief ... shall extend no further than necessary to correct the violation of the Federal right of a particula r plaintiff or plaintiffs."). Plaintiffs h ave bee n isolated in Tier C, which is otherwise unoccupied, and the measures implemented pursu a n t to th e Third
31

Plan only lower the heat indices in the portion of Tier C in which Plaintiffs were confined.
Second, the measures implemented under the Third Plan are consistent with the suggestions of the Court of Appeals, re ndering th e measures "narrowly drawn [and] extend[ing] no further than necessary to correct the violation of the Federal right." Id. The Third Plan involves diverting cool air from the guards' pod to the portion of Tier C in which Plaintiffs were confined, see Ball, 792 F.3cl at 599 ("Defendants could divert cool air from the gua rds' pod into the tiers ...."); providing a cooling mechanism that is essentially an ice chest with an attached fan, see id. ("Defendants could .. . supply personal ice con tainer s and individual fans ....");and providing daily cold showers, access to icc, a nd individual fans, see id. (''Defendants could ... allow access to cool showers at least once a clay[,] provide ample supply of . . . ice at all times[, a nd] supply ... individual fans ...."). The Court of Appeals held that all of these remedies "are precisely the types of remedies this court endorsed in Gates ... and that the PLRA requires," instructing this Court to "limit its relief to these types of remedies ." Id. The r emedies implemented purs ua nt to the Thil"Cl Plan are in fact so limited, and thus they a re co nsistent with the limitations of the PLRA.
Third, the measures implemented pursu ant to t he Third Plan are "the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626(a)(l)(A). This Court, by enjoining Defendants to imple ment the measures pursuant to their Third Plan, is not intruding upon the province of prison officials, but rather ordering Defendants merely to imple ment a Plan of their own creation.
32

Fourth, this Court has "give[n] substantial weight to any adverse impact on public safety or the operation of a crimin al justice system caused by the r elief." Id. Although there prese ntly is no evidence of mo ld growth in t he gua rds' pod as a result of the implementation of t he measures und er the Third Plan, this Co urt has identified alternative measures t hat could be implemented in the event that mold growth is detected, taking due account of the potential adverse effects that this injunction may h ave on prison officials due to their possible exposure to mold spores. Additionally, the total cost of the impleme ntation of the Third Plan was less than $2,000 - far below the costs of alternative remedial measures - which is an amount that will neither unduly burden Angola's budget nor have a ny "adverse impact on ... the operation of a criminal justice system." Id.
Therefore, the measures implemented pursuant to Defenda nts' Third Plan remedy the constitutional violation found by this Cour t a nd affirmed by t he Court of Appeals by lowering t he heat indices in the a rea in which Plaintiffs were confined, which is the only means of s ufficien t ly reducing t he s ub stantial risk of serious harm to Plaintiffs, and those measures are consistent with both the PLRA and t he limitations that the Court of Appeals set on t his Court in fashioning relief.
B. The Court Must Enjoin Defendants to Implem e nt t h e Meas ures of the Third Plan Because Without an Injunction, There Exist s a Danger t h at Defendants Will Revert t o the Ins ufficient Measures of th e Second Plan
"[T]he court's power to grant injunctive relief sm·vivcs discontinuance of the illegal conduct." United States u. W.T. Grant Co. , 345 U .S. 629, 633 (1953). When a party has voluntarily discontinued illegal conduct, "[t]he necessary determination is
33

that there exists some cognizable danger of recurrent violation, someth ing more than th e mere possibility which serves to keep the case alive." Id.
Although Defenda nts voluntarily implemen ted t he measures under the Third Plan in June 2016, they continue to assert that those measures are "temporary and experimen tal," (Doc. 375, Hr'g Tr. at p. 47, 11. 12-1 3), and t hat t he measures implemented pursu a nt to the Second Plan "are sufficient," (id. at p. 46, l. 22). The Court has found that the measures implemented under the Second Plan are insufficient to remedy the Eighth Amendment violation in t his case, and thus if Defenda nts were to revert to those measures, a recurrent constitutional violation would result. Therefore, given the Defendants' cha racterization of the measures voluntarily implemented pursuant to the Third Plan as "temporary a nd experimental" and Defendants' insiste nce that the measures imple mented un der the Second Pla n are sufficient to remedy the Eighth Amendment violation - which they a re not- t he Court finds that there is a "cognizable danger of r ecurrent viola tion" and that it is necessa ry to issue an injunction. Id.
IV. CONCL USION Based on the foregoing, IT I S ORDERE D that Plaintiffs' Motion to Modify Injunctive Relief (Doc.
315) is GRANTED IN PART and DENIE D IN PART. IT IS FURTHER ORDERED that Defendants are ENJOINED to implement
the remedial measures under the Third Plan during any period in which the heat
34

index in the death-row tiers exceeds 88 degrees Fahrenheit. Specifically, when the heat index in the death-row tiers in which Plaintiffs are confined exceeds 88 degrees Fahrenheit:
1) Defendants a re enjoined to relocate Plaintiffs to Tier C, which otherwise is to remain unoccupied during the time of such relocation;
2) Defendants are enjoined to assign Plaintiffs to cells C-1, C-2, and C-3; 3) Defe ndants are enjoined to install and/or unseal a 27" x 34" air vent in t he
door that co nnects Tier C to the guards' pod, which will divert conditioned air from the gu a rds' pod to the portion of Tier C in which Plaintiffs a re confined; 4) Defendants are enjoined to install a "curtain" constructed of heavy plas tic between cells C-4 and C-5, in order to keep the newly diverted cool air inside t he p01·tion of Tier C in which Plaintiffs are confined; 5) Defenda nts a re enjoined to provide to each Plaintiff a n IcyBreeze unit, the front of which is to be located no more th an twelve inches from Plaintiffs' cells; G) Defenda nts a re enj oined to fill Plaintiffs' IcyBreeze units with ice a nd replenish that ice regularly so that the IcyBreeze units function properly and emit cool air; 7) Defe ndants are enjoined to install or maintain a water-valve controller in the sh owe rs in Tier C that allows Plaintiffs to select between hot and cold water for their s howers;
35

8) Defenda nts a re enjoined to permit Plaintiffs to take one daily shower; 9) Defendants a re enjoined to provide to each Plaintiff an ice container; lO)Defendants are enjoined to fill those ice containers with ice and replenish
that ice regularly; ll)Defendants a re enjoined to provide to each Plaintiff a fan; 12)In the eve nt that mold growth proliferates in the guards' pod of t he death-
row facility due to the measures prescribed by t his injunction, Defendants are enjoined to seek leave from th is Court, and upon receiving such leave, Defe nda nts are e njoined to seal the air vent and provide a sufficient number of additional IcyBreeze units to each Plaintiff in order to maintain the heat index of the portion of Tier C in which Plaintiffs are confined below 88 degrees Fahrenheit; and IS)Defendan ts a re enjoined to regularly monitor the heat index of the por tion of Tier C in which Plaintiffs are confined.

'22.~ay Baton Rouge, Louisiana, this

of December, 2016.

BRIAN A. JAC

, CHIEF JUDGE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

36

 
 Case 3:13-cv-00368-BAJ-EWD Document 410 05/02/17 Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, NATHANIEL CODE, AND JAMES MAGEE,
PLAINTIFFS
VS.
JAMES M. LEBLANC, SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, BURL CAIN, WARDEN OF THE LOUISIANA STATE PENITENTIARY, ANGELA NORWOOD, WARDEN OF DEATH ROW, AND THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
DEFENDANTS

* CIVIL ACTION NO. 13-368 * * * * * * * JUDGE: BAJ * * * * MAGISTRATE: EWD * * * * * * *

SECOND MOTION TO MAINTAIN THE STATUS QUO

NOW INTO COURT come Plaintiffs Elzie Ball, Nathaniel Code, and James Magee, through undersigned counsel, and respectfully request that this Court to enforce its order (Rec. Doc. 214) and require the Defendants to put back on the exhaust fans in Plaintiffs’ cells. Further, Plaintiffs request that this Court issue an order requiring Defendants to show cause why they should not be found in contempt for their violation of this Court’s Injunctive Order, this Court's order to maintain the status quo, and for any and all sanctions deemed appropriate by this Court, including without limitation attorneys’ fees.

Date: May 2, 2017

Respectfully submitted,

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Case 3:13-cv-00368-BAJ-EWD Document 410 05/02/17 Page 2 of 2
/s/ Mercedes Montagnes Mercedes Montagnes, La. Bar No. 33287 (Lead Counsel) The Promise of Justice Initiative 636 Baronne Street New Orleans, LA 70113 Tel. (504) 529-5955 Fax (504) 558-0378 Email: mmontagnes@thejusticecenter.org
Steven Scheckman, La. Bar No. 08472 Schiff, Scheckman & White LLP 650 Poydras Street, Suite 2760 New Orleans, Louisiana 70130 Phone: 504.309.7888 Fax: 504.518.4831 Email: steve@sswethicslaw.com
Nilay U. Vora, Ca. Bar No. 268339, admitted pro hac vice Jeffer Mangels Butler & Mitchell LLP 1900 Avenue of the Stars, 7th Floor Los Angeles, California 90067 Tel. (310) 203-8080 Fax (310) 203-0567 Email: NVora@jmbm.com
CERTIFICATE OF SERVICE
I do hereby certify that on May 2, 2017, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system which will send a notice of electronic filing to all
CM/ECF participants.
s/ Mercedes Montagnes MERCEDES MONTAGNES, LSBA #33287 636 Baronne Street New Orleans, LA 70113 (504) 529-5955
2

Case 3:13-cv-00368-BAJ-EWD Document 410-1 05/02/17 Page 1 of 7

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, NATHANIEL CODE, AND JAMES MAGEE,
PLAINTIFFS
VS.
JAMES M. LEBLANC, SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, BURL CAIN, WARDEN OF THE LOUISIANA STATE PENITENTIARY, ANGELA NORWOOD, WARDEN OF DEATH ROW, AND THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
DEFENDANTS

* CIVIL ACTION NO. 13-368 * * * * * * * JUDGE: BAJ * * * * MAGISTRATE: EWD * * * * * * *

MEMORANDUM IN SUPPORT OF PLAINTIFFS' SECOND MOTION TO MAINTAIN THE STATUS QUO
NOW INTO COURT come Plaintiffs Elzie Ball, Nathaniel Code, and James Magee, through undersigned counsel, and respectfully request that this Court to enforce its order (Rec. Doc. 214) and require the Defendants to return the exhaust fans in Plaintiffs’ cells to their previous full operation.1 In its prior ruling, the Court held that “Defendants shall not make any alterations to the death row tiers without the prior approval of the District Court. Defendants’ continued failure to maintain the status quo in the death row tiers shall result in sanctions against Defendants.” (Rec. Doc. 214.) Plaintiffs request that the Court issue an order to show cause why

1 Shortly before filing this motion, Plaintiffs’ counsel received information that indicated the vents may have been turned back on. However, Plaintiffs’ counsel will be unable to verify this information before tomorrow afternoon and for reasons discussed herein believe the filing of this motion was still necessary.
1

Case 3:13-cv-00368-BAJ-EWD Document 410-1 05/02/17 Page 2 of 7
Defendants should not be held in contempt for their violation of this Court’s Injunction which explicitly relied upon the exhaust ventilation system to achieve the diversion of cool air from the guards' pod to the Tier C cells in which Plaintiffs are incarcerated and thereby remedy the Eighth Amendment violation. (Rec. Doc. 379 at 17 (“The installation of the 27" x 34" air vent in the door connecting Tier C to the guards' pod permitted the conditioned air in the guards' pod to flow into Tier C … and into the space in which Plaintiffs were confined. The conditioned air subsequently exited the structure through the tier's exhaust system.”)). Plaintiffs also move for all appropriate sanctions, including attorneys’ fees, and such other equitable relief as this Court deems just and proper.
Plaintiffs have attempted to resolve this issue with Defendants through their counsel in order to avoid bringing it before this Court. Unfortunately, Defendants maintained the position that the recent shut down of the Plaintiffs’ exhaust fans was part of the status quo. Plaintiffs were unable to comprehend Defendants' position given that Plaintiffs have personally experienced a marked difference in their conditions of confinement following Defendants' alteration of the conditions that existed previously. These conditions were the subject of testimony by the Court's appointed expert Mr. Hernandez, and that were ultimately described in this Court's Injunction. Shortly before filing this motion, it appears Defendants' position may have altered and that the vents will be restored to full operation. However, in light of the ongoing lack of clarity in Defendants' explanations in this matter, Plaintiffs file this motion to ensure that the Court is aware of Defendants' actions that could have limited the effectiveness of the Injunction and to deterother potential retaliatory actions against Plaintiffs.
2

Case 3:13-cv-00368-BAJ-EWD Document 410-1 05/02/17 Page 3 of 7
I. FACTUAL BACKGROUND The factual background and procedural history of this matter are well known to the Court. The litigation revolves around the extreme heat conditions on Death Row at Louisiana State Penitentiary. This matter is in briefing on its second appeal following this Court's issuing of a new injunction on remand from the first appeal. Plaintiffs have been attempting to resolve this latest issue for almost a month. It arose on April 5, 2017 when Plaintiffs' counsel informed the Defendants and the Special Master that alterations to the exhaust system appear to have taken place and asked Defendants to investigate those reports. Ex. 1 (Email from Montagnes to Roper April 5, 2017). Two days later, Plaintiffs’ counsel inquired about the status of Defendants' investigation. Ex. 2. (Email from Montagnes to Roper April 7, 2017). Four days later, Defendants responded that their clients reported no changes to the vents. Plaintiffs’ counsel informed Defendants that Plaintiffs reported changes to the vents and to be informed of any changes in Plaintiffs conditions. Ex. 3 (Email from Montagnes to Roper April 11, 2017). Approximately two weeks later, Plaintiffs reported that the vents had again been turned off and that the Warden reported to them that the vents had been turned off to avoid circulating the air from the central pod onto Tier C where they are housed, i.e. to prevent the diversion of cool air from the guards' pod onto Tier C. Plaintiffs’ counsel reported this to Defendants and asked that they respond immediately. Ex. 4 (Email from Montagnes to Roper April 28, 2017). By 2:10pm the following Monday, Plaintiffs had not received a substantive response to their concerns and inquired about the status. Ex. 5 (Email from Scheckman to Special Master Hebert May 1, 2017). A lengthy email exchange took place before the parties. Ex. 6 (Various emails).
3

Case 3:13-cv-00368-BAJ-EWD Document 410-1 05/02/17 Page 4 of 7
Remarkably, for the first time, Defendants alleged that as part of their implementation of the Third Heat Remediation Plan they closed the sanitation vents inside the Plaintiffs’ cells. Ex. 6 Page 8-9. This assertion by Defendants is implausible. The closure of the vents was never previously known to (or experienced by) Plaintiffs, was not part of the joint stipulation of the parties detailing the alterations contained in the Third Heat Remediation Plan (Rec. Doc. 360), and is directly contradicted by the testimony of the Court appointed expert, Mr. Shane Hernandez. Ex. 7 (Transcript August 22, 2016) and Ex. 8 (Report of Shane Hernandez). Defendants further asserted that they would open the vents if that is what Plaintiffs desire but that "this will negate the cooling effect of the experiment." Ex. 6 Page 11. Again, this is not consistent with the testimony of Mr. Hernandez and the factual findings upon which the Court's Injunction was issued.
Defendants’ position remains difficult to understand because of Defendants’ constantly shifting justifications of the need for specific prerequisites to be met before they take corrective action. Defendants have at various times stated that they would turn the vents on Thursday May 4, 2017 with Plaintiffs’ counsel present (Ex. 6 Page 11); that they required the Court’s consent to open the vents because it would alter the status quo (Ex. 6 Page 8-9); that they required the Special Master’s Consent to open the vents because it would alter the status quo (Ex. 6 Page 6); that they could not take a position on whether the vents were open or closed last summer when the Third Plan was voluntarily undertaken, and that Defendants would open the vents only if Plaintiffs conceded opening the vents would not be a violation of the status quo, despite Plaintiffs’ repeated explanations that Defendants must have knowledge of whether alterations were made to the pre-existing conditions (Ex. 6, Page 1-2).
Then, shortly before the filing of this motion, Defense counsel sent an email stating:
4

Case 3:13-cv-00368-BAJ-EWD Document 410-1 05/02/17 Page 5 of 7
In our continuing effort to resolve this issue, we have been trying to get in touch with our expert, Frank Thompson. We have just been able to reach him and he has confirmed that on the day that he conducted his inspection,that the exhaust vents appeared to be open. In light of that, we instructed LSP to open the vents and it is my understanding that this has been accomplished.
Ex. 11 (Roper Email to Scheckman May 2, 2017). Given Defendants’ inexplicable shifting rationales and failure to address matter for
almost a month, Plaintiffs grave concerns about the representations made by Defendants to their own counsel in this matter, and Defendants' control and constructive knowledge of virtually all aspects of the conditions in which Plaintiffs are confined,, Plaintiffs felt that the Court should be made aware of the situation.
II. ARGUMENT The relief voluntarily undertaken by Defendants and ordered by this Court relied on the exhaust system in the Plaintiffs’ cells. It was observed by the Court appointed expert. Ex. 7 at 14-16 & 8 at 2. The Defendants never mentioned any alterations they planned to make to the exhaust system until Plaintiffs reported a change in the exhaust fan. Ex. 6 Page 11. Only then, and for the first time ever, did Defendants claim that they had altered the internal mechanisms in the Plaintiffs ventilation system. Ex. 6 Page 8-9. This claim is not only without any documentation but it also violates the pre-existing order to maintain the status quo since it was never mentioned to either Plaintiffs or the Court when Defendants sought approval of the parties and the Court to conduct experimentation during the summer of 2016. The Defendants have refused to acknowledge recent changes to the ventilation system. They have intimated that “our clients will open the louvers within the exhaust system if that is what you want them to do. They are just concerned that you will not like the results, as the temperature in the cells is almost certain to rise.” Ex. 6 Page 8-9. Given the tone of this email,
5

Case 3:13-cv-00368-BAJ-EWD Document 410-1 05/02/17 Page 6 of 7
Plaintiffs are concerned that Defendants will make alterations deliberately designed to alter the status quo instead of simple doing what was in place last summer.
Furthermore, the ventilation system in place provides health and safety measures which rid the air of possible contaminants and odor. See e.g. Ex. 9 (transcript of David Garon Testimony Page 286-287) & Ex. 7 (Transcript of Testimony Hernandez, Page 14-15). This type of ventilation is required in parish jails by code and by ASHRAE standards in all buildings across Louisiana. Ex. 10 (Minimal Jail Standards). Plaintiffs are concerned that the ongoing shut down of the air circulation could cause contaminants to grow and cause unsafe conditions.
Further, even though it appears that Defendants have turned back on the ventilation system, Plaintiffs are obligated to bring this before the Court. Defendants have previously shown bad faith with respect to making alterations to Death Row. See, e.g., Rec. Doc. 88 (discussing Defendants’ “willful, bad faith” attempts to manipulate the court-ordered temperature data and abusing the discovery process); Rec. Doc. 214 (Order to Maintain the Status Quo). Defendants' prior actions on heighten Plaintiffs’ concerns about altering the Death Row facility with respect to the present issue.
III. CONCLUSION Wherefore, Plaintiffs respectfully request that the Court order Defendants to restore the conditions to those observed by the court appointed expert in this matter, show cause as to why they should not be found in contempt for violation of this Court's order to maintain the status quo and this Court's Injunction, for sanctions in the form of attorneys' fees, and for such other remedies deemed appropriate by this Court.
Date: May 2, 2017
6

Case 3:13-cv-00368-BAJ-EWD Document 410-1 05/02/17 Page 7 of 7
Respectfully submitted,
/s/ Mercedes Montagnes Mercedes Montagnes, La. Bar No. 33287 (Lead Counsel) The Promise of Justice Initiative 636 Baronne Street New Orleans, LA 70113 Tel. (504) 529-5955 Fax (504) 558-0378 Email: mmontagnes@thejusticecenter.org
Steven Scheckman, La. Bar No. 08472 Schiff, Scheckman & White LLP 650 Poydras Street, Suite 2760 New Orleans, Louisiana 70130 Phone: 504.309.7888 Fax: 504.518.4831 Email: steve@sswethicslaw.com
Nilay U. Vora, Ca. Bar No. 268339, admitted pro hac vice Jeffer Mangels Butler & Mitchell LLP 1900 Avenue of the Stars, 7th Floor Los Angeles, California 90067 Tel. (310) 203-8080 Fax (310) 203-0567 Email: NVora@jmbm.com
CERTIFICATE OF SERVICE
I do hereby certify that on May 2, 2017, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system, which will send a notice of electronic filing to all
CM/ECF participants.
s/ Mercedes Montagnes MERCEDES MONTAGNES, LSBA #33287 636 Baronne Street New Orleans, LA 70113 (504) 529-5955
7

Case 3:13-cv-00368-BAJ-EWD Document 410-2 05/02/17 Page 1 of 1

From: To: Subject: Date:

Mercedes Montagnes Samantha Bosalavage FW: Ball v. LeBlanc - Death Row Vent Issues Tuesday, May 2, 2017 11:49:02 AM

From: Mercedes Montagnes Sent: Wednesday, April 5, 2017 3:54 PM To: 'Mary Roper' <maryr@SCWLLP.COM>; Renatti Dupont <rsdupont@ohllc.com> Cc: Colin Clark <clarkc@ag.state.la.us>; Nilay Vora <NVora@jmbm.com>; Steven Scheckman <steve@SSWETHICSLAW.COM>; Winston White <WhiteW@ag.louisiana.gov>; Wade Shows <wade@scwllp.com>; Jeffrey Cody <jeffreyc@scwllp.com>; Carlton Trey Jones <cjones@roedelparsons.com>; Paul Hebert <pjhebert@ohllc.com> Subject: Ball v. LeBlanc - Death Row Vent Issues
Counsel and Special Master,
Last week our clients reported to us that the vents in their cells were not working. We wanted to make sure that the problem was not temporary or could not be handled internally without involving counsel.
Today, they confirmed that the vents appear to be blocked, turned off, or malfunctioning in some way. As a result the cool air is not circulating in their tier as it has in the past. Can you please let us know as soon as possible what is going on and how it can be rectified?
Best,
Mercedes Montagnes The Promise of Justice Initiative 636 Baronne St. New Orleans, LA 70113 (504) 529-5955 Mercedesm@thejusticecenter.org<mailto:Mercedesm@thejusticecenter.org>
This message is a PRIVILEGED AND CONFIDENTIAL communication. This message and all attachments are a private communication sent by a law office and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you.

Case 3:13-cv-00368-BAJ-EWD Document 410-3 05/02/17 Page 1 of 3

Mara Abramson
From: Sent: To: Subject:

Samantha Bosalavage Tuesday, May 02, 2017 5:16 PM Mara Abramson Fwd: Ball v. LeBlanc - Death Row Vent Issues

Sent from my iPhone
Begin forwarded message:
From: Mercedes Montagnes <MMontagnes@thejusticecenter.org> Date: May 2, 2017 at 11:49:05 AM CDT To: Samantha Bosalavage <SBosalavage@thejusticecenter.org> Subject: FW: Ball v. LeBlanc - Death Row Vent Issues
From: Mercedes Montagnes Sent: Friday, April 7, 2017 4:33 PM To: 'White, Winston' <WhiteW@ag.louisiana.gov>; Mary Roper <maryr@SCWLLP.COM>; Renatti Dupont <rsdupont@ohllc.com> Cc: Clark, Colin <ClarkC@ag.louisiana.gov>; Nilay Vora <NVora@jmbm.com>; Steven Scheckman <steve@SSWETHICSLAW.COM>; Wade Shows <wade@scwllp.com>; Jeffrey Cody <jeffreyc@scwllp.com>; Carlton Trey Jones <cjones@roedelparsons.com>; Paul Hebert <pjhebert@ohllc.com> Subject: RE: Ball v. LeBlanc ‐ Death Row Vent Issues
Counsel,
I want to inquire about the status of your investigation regarding the vents in our clients cells. Please let us know what if anything you have been able to ascertain from your client.
Best,
Mercedes Montagnes The Promise of Justice Initiative 636 Baronne St. New Orleans, LA 70113 (504) 529‐5955 Mercedesm@thejusticecenter.org<mailto:Mercedesm@thejusticecenter.org>
This message is a PRIVILEGED AND CONFIDENTIAL communication. This message and all attachments are a private communication sent by a law office and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you.
1

Case 3:13-cv-00368-BAJ-EWD Document 410-3 05/02/17 Page 2 of 3
From: White, Winston [mailto:WhiteW@ag.louisiana.gov] Sent: Wednesday, April 5, 2017 4:02 PM To: Mercedes Montagnes <MMontagnes@thejusticecenter.org>; Mary Roper <maryr@SCWLLP.COM>; Renatti Dupont <rsdupont@ohllc.com> Cc: Clark, Colin <ClarkC@ag.louisiana.gov>; Nilay Vora <NVora@jmbm.com>; Steven Scheckman <steve@SSWETHICSLAW.COM>; Wade Shows <wade@scwllp.com>; Jeffrey Cody <jeffreyc@scwllp.com>; Carlton Trey Jones <cjones@roedelparsons.com>; Paul Hebert <pjhebert@ohllc.com> Subject: RE: Ball v. LeBlanc ‐ Death Row Vent Issues Special Master Hebert, I have asked the Wardens to look into these allegations. Thank you,
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From: Mercedes Montagnes [mailto:MMontagnes@thejusticecenter.org] Sent: Wednesday, April 05, 2017 3:54 PM To: Mary Roper; Renatti Dupont Cc: Clark, Colin; Nilay Vora; Steven Scheckman; White, Winston; Wade Shows; Jeffrey Cody; Carlton Trey Jones; Paul Hebert Subject: Ball v. LeBlanc - Death Row Vent Issues
Counsel and Special Master, Last week our clients reported to us that the vents in their cells were not working. We wanted to make sure that the problem was not temporary or could not be handled internally without involving counsel.
2

Case 3:13-cv-00368-BAJ-EWD Document 410-3 05/02/17 Page 3 of 3
Today, they confirmed that the vents appear to be blocked, turned off, or malfunctioning in some way. As a result the cool air is not circulating in their tier as it has in the past. Can you please let us know as soon as possible what is going on and how it can be rectified? Best,
Mercedes Montagnes The Promise of Justice Initiative 636 Baronne St. New Orleans, LA 70113 (504) 529‐5955 Mercedesm@thejusticecenter.org<mailto:Mercedesm@thejusticecenter.org> This message is a PRIVILEGED AND CONFIDENTIAL communication. This message and all attachments are a private communication sent by a law office and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you.
The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.
The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to postmaster@ag.state.la.us.
3

Case 3:13-cv-00368-BAJ-EWD Document 410-4 05/02/17 Page 1 of 2

From: To: Subject: Date: Attachments:

Mercedes Montagnes
Samantha Bosalavage
FW: Ball v. Leblanc
Tuesday, May 2, 2017 11:50:47 AM
image001.png image002.png image003.png image004.png image005.png

From: Mercedes Montagnes Sent: Tuesday, April 11, 2017 2:26 PM To: 'White, Winston' <WhiteW@ag.louisiana.gov>; pjhebert@ohllc.com; rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; steve@SSWETHICSLAW.COM; 'nvora@jmbm.com' <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>; Jeffrey Cody <jeffreyc@scwllp.com> Subject: RE: Ball v. Leblanc
Thank you counsel. I understand from my clients that the vents began functioning again last week. They are concerned that they appear to be operating at a slower rate than they have in the past.
We want to be sure to be aware of any changes to our clients conditions – so please keep us informed or let us know if you object to doing so.
Best,
From: White, Winston [mailto:WhiteW@ag.louisiana.gov] Sent: Tuesday, April 11, 2017 10:30 AM To: pjhebert@ohllc.com; rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; White, Winston <WhiteW@ag.louisiana.gov>; Mercedes Montagnes <MMontagnes@thejusticecenter.org>; steve@SSWETHICSLAW.COM; 'nvora@jmbm.com' <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>; Jeffrey Cody <jeffreyc@scwllp.com> Subject: Ball v. Leblanc
All,
I have spoken with the Wardens regarding the plaintiffs’ allegations of changes to the vents. The Wardens have confirmed there have been no changes to the vents.

Case 3:13-cv-00368-BAJ-EWD Document 410-4 05/02/17 Page 2 of 2
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Case 3:13-cv-00368-BAJ-EWD Document 410-5 05/02/17 Page 1 of 3

From: To: Subject: Date: Attachments:
Importance:

Mercedes Montagnes Samantha Bosalavage FW: Ball v. Leblanc Tuesday, May 2, 2017 11:53:13 AM image001.png image002.png image003.png image004.png image005.png High

From: Mercedes Montagnes Sent: Friday, April 28, 2017 10:55 AM To: 'White, Winston' <WhiteW@ag.louisiana.gov>; 'pjhebert@ohllc.com' <pjhebert@ohllc.com>; 'rsdupont@ohllc.com' <rsdupont@ohllc.com>; 'Clark, Colin' <ClarkC@ag.louisiana.gov>; 'steve@SSWETHICSLAW.COM' <steve@SSWETHICSLAW.COM>; 'nvora@jmbm.com' <nvora@jmbm.com>; 'Mary Roper' <maryr@SCWLLP.COM>; 'Jeffrey Cody' <jeffreyc@scwllp.com> Subject: RE: Ball v. Leblanc Importance: High
Counsel,
We had reports from our clients on Tuesday that the vents in the cells had been turned off. We planned to address with you but wanted to give it a couple of days to see if it resolved.
Our clients report that the inmate in charge of maintenance confirmed the vents had been turned off and told them to discuss the vents with the Warden if they wanted to them back on. When the Warden came around later that day he told our clients he would not turn on the ventilation system because it was sucking the air from the main control area. This is in direct violation of the Judge’s existing orders- including an order to maintain the status quo. In addition, as we have heard from several experts this ventilation is required for the health and safety of our clients to ensure that air circulates. Our clients use the toilet and shower on this tier.
This is especially concerning considering the email exchange of April 11, 2017 and the history of this case.
Please advise us immediately of the actions you have taken to rectify this situation.
Sincerely,
Mercedes Montagnes The Promise of Justice Initiative 636 Baronne St. New Orleans, LA 70113 (504) 529-5955

Case 3:13-cv-00368-BAJ-EWD Document 410-5 05/02/17 Page 2 of 3
Mercedesm@thejusticecenter.org<mailto:Mercedesm@thejusticecenter.org>
This message is a PRIVILEGED AND CONFIDENTIAL communication. This message and all attachments are a private communication sent by a law office and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you.
From: Mercedes Montagnes Sent: Tuesday, April 11, 2017 2:26 PM To: 'White, Winston' <WhiteW@ag.louisiana.gov>; pjhebert@ohllc.com; rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; steve@SSWETHICSLAW.COM; 'nvora@jmbm.com' <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>; Jeffrey Cody <jeffreyc@scwllp.com> Subject: RE: Ball v. Leblanc
Thank you counsel. I understand from my clients that the vents began functioning again last week. They are concerned that they appear to be operating at a slower rate than they have in the past.
We want to be sure to be aware of any changes to our clients conditions – so please keep us informed or let us know if you object to doing so.
Best,
From: White, Winston [mailto:WhiteW@ag.louisiana.gov] Sent: Tuesday, April 11, 2017 10:30 AM To: pjhebert@ohllc.com; rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; White, Winston <WhiteW@ag.louisiana.gov>; Mercedes Montagnes <MMontagnes@thejusticecenter.org>; steve@SSWETHICSLAW.COM; 'nvora@jmbm.com' <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>; Jeffrey Cody <jeffreyc@scwllp.com> Subject: Ball v. Leblanc
All,
I have spoken with the Wardens regarding the plaintiffs’ allegations of changes to the vents. The Wardens have confirmed there have been no changes to the vents.

Case 3:13-cv-00368-BAJ-EWD Document 410-5 05/02/17 Page 3 of 3
Follow us on:
The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution, or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to postmaster@ag.state.la.us. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to postmaster@ag.state.la.us.

Case 3:13-cv-00368-BAJ-EWD Document 410-6 05/02/17 Page 1 of 4

From: To: Subject: Date:

Mercedes Montagnes Samantha Bosalavage FW: Ball v. Leblanc Tuesday, May 2, 2017 2:51:27 PM

-----Original Message----From: Steven Scheckman [mailto:steve@SSWETHICSLAW.COM] Sent: Monday, May 1, 2017 2:10 PM To: White, Winston <WhiteW@ag.louisiana.gov>; Mercedes Montagnes <MMontagnes@thejusticecenter.org>; pjhebert@ohllc.com; rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; 'nvora@jmbm.com' <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>; Jeffrey Cody <jeffreyc@scwllp.com> Subject: RE: Ball v. Leblanc
Special Master Hebert and Counsel,
As a follow-up to my email of April 28, 2017 advising that David Garon will be accompanying me for the site visit on May 18, 2017, and further advising that I would inform you of the instruments he intended to bring with him on the site visit, please be advised that David Garon will bring with him for the site visit the following instruments for taking airflow, pressure, temperature and humidity measurements:
1. Shortridge 8400 Series Flow Hood Kit 2. ADM-870C Air Data Multi Meter 3. Extech RH350 Temperature and Humidity Meter
Please advise me if there will be any problem with Mr. Garon bringing the above referenced instruments with him for the site visit.
Finally, we are still very concerned about the reports we related to you on Friday and are awaiting a response. Given the seriousness of the reports we request a response from counsel by the close of business today.
Thank you.
Steve Scheckman Schiff, Scheckman & White LLP 650 Poydras Street, Suite 2760 New Orleans, Louisiana 70130 Phone: 504.309.7888 Fax: 504.518.4831 Email: steve@sswethicslaw.com www.sswethicslaw.com
NOTICE: The information contained in this E-mail transmittal, including any attached document(s), is privileged and confidential. The information is intended only for the use of the named recipient. If you are not the named recipient, you are hereby notified that any use, disclosure, copying, storage, distribution or other use of all or any portion of this message and of the contents hereof is strictly prohibited. If you received this message in error, please immediately notify the sender by reply e-mail and delete this message in its entirety.
-----Original Message----From: White, Winston [mailto:WhiteW@ag.louisiana.gov] Sent: Friday, April 28, 2017 4:25 PM To: Steven Scheckman <steve@SSWETHICSLAW.COM>; Mercedes Montagnes <MMontagnes@thejusticecenter.org>; pjhebert@ohllc.com; rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; 'nvora@jmbm.com' <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>;

Case 3:13-cv-00368-BAJ-EWD Document 410-6 05/02/17 Page 2 of 4
Jeffrey Cody <jeffreyc@scwllp.com> Subject: RE: Ball v. Leblanc
Counsel,
We have received your email and have conveyed your concerns to the Wardens. We are currently working with them to get to the bottom of this issue. We will get back with you on Monday to discuss further.
Thank you,
Winston White Assistant Attorney General Louisiana Department of Justice Criminal Division P.O Box 94005 Baton Rouge, Louisiana 70804 (225) 326-6269 (Telephone) (225) 326-6297 (Fax)
The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution, or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to postmaster@ag.state.la.us<mailto:postmaster@ag.state.la.us>. ________________________________ From: Steven Scheckman <steve@SSWETHICSLAW.COM> Sent: Friday, April 28, 2017 11:51 AM To: Mercedes Montagnes; White, Winston; pjhebert@ohllc.com; rsdupont@ohllc.com; Clark, Colin; 'nvora@jmbm.com'; Mary Roper; Jeffrey Cody Subject: RE: Ball v. Leblanc
Special Master Hebert,
Please be advised that David Garon will also accompany me on May 18, 2017, for the site visit and we will send the information about instruments he may bring with him soon. Thank you.
Steve Scheckman Schiff, Scheckman & White LLP 650 Poydras Street, Suite 2760 New Orleans, Louisiana 70130 Phone: 504.309.7888 Fax: 504.518.4831 Email: steve@sswethicslaw.com<mailto:steve@sswethicslaw.com> www.sswethicslaw.com<http://www.sswethicslaw.com/> [Email SSW Logo with Name - flat] NOTICE: The information contained in this E-mail transmittal, including any attached document(s), is privileged and confidential. The information is intended only for the use of the named recipient. If you are not the named recipient, you are hereby notified that any use, disclosure, copying, storage, distribution or other use of all or any portion of this message and of the contents hereof is strictly prohibited. If you received this message in error, please immediately notify the sender by reply e-mail and delete this message in its entirety.
From: Mercedes Montagnes [mailto:MMontagnes@thejusticecenter.org] Sent: Friday, April 28, 2017 10:55 AM

Case 3:13-cv-00368-BAJ-EWD Document 410-6 05/02/17 Page 3 of 4
To: White, Winston <WhiteW@ag.louisiana.gov>; pjhebert@ohllc.com; rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; Steven Scheckman <steve@SSWETHICSLAW.COM>; 'nvora@jmbm.com' <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>; Jeffrey Cody <jeffreyc@scwllp.com> Subject: RE: Ball v. Leblanc Importance: High
Counsel,
We had reports from our clients on Tuesday that the vents in the cells had been turned off. We planned to address with you but wanted to give it a couple of days to see if it resolved.
Our clients report that the inmate in charge of maintenance confirmed the vents had been turned off and told them to discuss the vents with the Warden if they wanted to them back on. When the Warden came around later that day he told our clients he would not turn on the ventilation system because it was sucking the air from the main control area. This is in direct violation of the Judge's existing orders- including an order to maintain the status quo. In addition, as we have heard from several experts this ventilation is required for the health and safety of our clients to ensure that air circulates. Our clients use the toilet and shower on this tier.
This is especially concerning considering the email exchange of April 11, 2017 and the history of this case.
Please advise us immediately of the actions you have taken to rectify this situation.
Sincerely,
Mercedes Montagnes The Promise of Justice Initiative 636 Baronne St. New Orleans, LA 70113 (504) 529-5955 Mercedesm@thejusticecenter.org<mailto:Mercedesm@thejusticecenter.org>>
This message is a PRIVILEGED AND CONFIDENTIAL communication. This message and all attachments are a private communication sent by a law office and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you.
From: Mercedes Montagnes Sent: Tuesday, April 11, 2017 2:26 PM To: 'White, Winston' <WhiteW@ag.louisiana.gov<mailto:WhiteW@ag.louisiana.gov>>; pjhebert@ohllc.com<mailto:pjhebert@ohllc.com>; rsdupont@ohllc.com<mailto:rsdupont@ohllc.com>; Clark, Colin <ClarkC@ag.louisiana.gov<mailto:ClarkC@ag.louisiana.gov>>; steve@SSWETHICSLAW.COM<mailto:steve@SSWETHICSLAW.COM>; 'nvora@jmbm.com' <nvora@jmbm.com<mailto:nvora@jmbm.com>>; Mary Roper <maryr@SCWLLP.COM<mailto:maryr@SCWLLP.COM>>; Jeffrey Cody <jeffreyc@scwllp.com<mailto:jeffreyc@scwllp.com>> Subject: RE: Ball v. Leblanc
Thank you counsel. I understand from my clients that the vents began functioning again last week. They are concerned that they appear to be operating at a slower rate than they have in the past.
We want to be sure to be aware of any changes to our clients conditions - so please keep us informed or let us know if you object to doing so.

Case 3:13-cv-00368-BAJ-EWD Document 410-6 05/02/17 Page 4 of 4
Best,
From: White, Winston [mailto:WhiteW@ag.louisiana.gov] Sent: Tuesday, April 11, 2017 10:30 AM To: pjhebert@ohllc.com<mailto:pjhebert@ohllc.com>; rsdupont@ohllc.com<mailto:rsdupont@ohllc.com>; Clark, Colin <ClarkC@ag.louisiana.gov<mailto:ClarkC@ag.louisiana.gov>>; White, Winston <WhiteW@ag.louisiana.gov<mailto:WhiteW@ag.louisiana.gov>>; Mercedes Montagnes <MMontagnes@thejusticecenter.org<mailto:MMontagnes@thejusticecenter.org>>; steve@SSWETHICSLAW.COM<mailto:steve@SSWETHICSLAW.COM>; 'nvora@jmbm.com' <nvora@jmbm.com<mailto:nvora@jmbm.com>>; Mary Roper <maryr@SCWLLP.COM<mailto:maryr@SCWLLP.COM>>; Jeffrey Cody <jeffreyc@scwllp.com<mailto:jeffreyc@scwllp.com>> Subject: Ball v. Leblanc
All,
I have spoken with the Wardens regarding the plaintiffs' allegations of changes to the vents. The Wardens have confirmed there have been no changes to the vents.
[Winston White]<http://ladoj.ag.state.la.us/index.aspx>
Follow us on: [Facebook Icon NAVY]<https://www.facebook.com/AGJeffLandry/> [Instagram Icon NAVY] <https://www.instagram.com/AGJeffLandry/> [Twitter Icon NAVY] <https://twitter.com/AGJeffLandry> [Youtube Icon NAVY] <https://www.youtube.com/channel/UCnboN4LjTa73t5iY8fz-QIw>
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The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to postmaster@ag.state.la.us<mailto:postmaster@ag.state.la.us>.
________________________________ The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. To reply to our e-mail administrator directly, please send an e-mail to postmaster@ag.state.la.us.

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 1 of 20

From: To: Subject: Date:

Mercedes Montagnes Samantha Bosalavage FW: Ball v. Leblanc Tuesday, May 2, 2017 2:59:48 PM

-----Original Message----From: Steven Scheckman [mailto:steve@SSWETHICSLAW.COM] Sent: Tuesday, May 2, 2017 12:49 PM To: Mary Roper <maryr@SCWLLP.COM> Cc: Mercedes Montagnes <MMontagnes@thejusticecenter.org>; Paul Hebert <pjhebert@ohllc.com>; Renatti Dupont <rsdupont@ohllc.com>; White, Winston <WhiteW@ag.louisiana.gov>; Clark, Colin <ClarkC@ag.louisiana.gov>; nvora@jmbm.com; Jeffrey Cody <jeffreyc@scwllp.com> Subject: RE: Ball v. Leblanc
Mary,
We believe that (1) the defendants have violated the status quo, (2) we are requesting the defendants return the conditions to status quo with air ventilation which every expert found reduced the temperature on the tier, and (3) given that we believe your clients have violated the status quo, we believe we have an obligation to report it to the Court.
Further, this email is the first time that you are willing to open the vents without the approval of the Special Master or the Court or before Thursday so it is not accurate to say that you have been willing to open the vents.
Steve
Steve Scheckman Schiff, Scheckman & White LLP 650 Poydras Street, Suite 2760 New Orleans, Louisiana 70130 Phone: 504.309.7888 Fax: 504.518.4831 Email: steve@sswethicslaw.com www.sswethicslaw.com
NOTICE: The information contained in this E-mail transmittal, including any attached document(s), is privileged and confidential. The information is intended only for the use of the named recipient. If you are not the named recipient, you are hereby notified that any use, disclosure, copying, storage, distribution or other use of all or any portion of this message and of the contents hereof is strictly prohibited. If you received this message in error, please immediately notify the sender by reply e-mail and delete this message in its entirety.
-----Original Message----From: Mary Roper [mailto:maryr@SCWLLP.COM] Sent: Tuesday, May 02, 2017 12:17 PM To: Steven Scheckman <steve@SSWETHICSLAW.COM> Cc: Mercedes Montagnes <MMontagnes@thejusticecenter.org>; Paul Hebert <pjhebert@ohllc.com>; Renatti Dupont <rsdupont@ohllc.com>; White, Winston <WhiteW@ag.louisiana.gov>; Clark, Colin <ClarkC@ag.louisiana.gov>; nvora@jmbm.com; Jeffrey Cody <jeffreyc@scwllp.com> Subject: Re: Ball v. Leblanc
Steven,
We have offered to open the vents. You are well aware of that. If we can be assured that opening the vents will not

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 2 of 20
be a violation of the status quo from last Summer, we will open them immediately. We have made our offer to do so repeatedly.
Are you willing to agree that our opening of the vents is not a violation of the status quo?
Mary
Sent from my iPhone
> On May 2, 2017, at 12:06 PM, Steven Scheckman <steve@SSWETHICSLAW.COM> wrote: > > Due respect, you have not offered to open the vents or they would be open now. You are requesting the special master make a factual determination without access to the facility. Given your clients incomprehensible position, we are now very concerned that your clients will do something to further alter our clients position and cause them harm. For this reason, we must file before the Court to preserve the record and our clients rights. > > > Steve Scheckman > Schiff, Scheckman & White LLP > 650 Poydras Street, Suite 2760 > New Orleans, Louisiana 70130 > Phone: 504.309.7888 > Fax: 504.518.4831 > Email: steve@sswethicslaw.com > www.sswethicslaw.com > > NOTICE: The information contained in this E-mail transmittal, including any attached document(s), is privileged and confidential. The information is intended only for the use of the named recipient. If you are not the named recipient, you are hereby notified that any use, disclosure, copying, storage, distribution or other use of all or any portion of this message and of the contents hereof is strictly prohibited. If you received this message in error, please immediately notify the sender by reply e-mail and delete this message in its entirety. > > -----Original Message----> From: Mary Roper [mailto:maryr@SCWLLP.COM] > Sent: Tuesday, May 02, 2017 11:52 AM > To: Mercedes Montagnes <MMontagnes@thejusticecenter.org>; Paul Hebert > <pjhebert@ohllc.com> > Cc: Renatti Dupont <rsdupont@ohllc.com>; White, Winston > <WhiteW@ag.louisiana.gov>; Clark, Colin <ClarkC@ag.louisiana.gov>; > 'nvora@jmbm.com' <nvora@jmbm.com>; Jeffrey Cody <jeffreyc@scwllp.com>; > Steven Scheckman <steve@SSWETHICSLAW.COM> > Subject: RE: Ball v. Leblanc > > Mercedes, > > We have been working diligently to understand the situation and have attempted to resolve the issue. We have offered to open the vents if that is what you want. > > We are not conceding anything about the condition of the vents being open or closed last Summer. That is what we have been trying to ascertain. We have consulted with our clients and have reported our clients' understanding. > > We are trying to work with you to resolve this issue. > > Mary E. Roper > Attorney at Law > Shows, Cali & Walsh, L.L.P. > 628 St. Louis Street (70802)

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 3 of 20
> P.O. Drawer 4425 > Baton Rouge, LA 70821 > Telephone: 225.346.1461 > Fax: 225.346.1467 > > CONFIDENTIALITY NOTICE: This communication and any attachments thereto, constitute an "electronic communication" within the meaning of the Electronic Communications Privacy Act, 18 U.S.C.A. §2510, and disclosure of these contents is limited to the recipient(s) intended by the sender of this messages. Unless expressly stated otherwise, this message and any documents accompanying this Email transmission are confidential and may be subject to the attorney client privilege or deemed work product documents. The Sender's expectation of privacy regarding the content of this e-mail message and any documents accompanying this transmission is extremely high. This message is intended solely for the addressee(s). If the reader of this message is not the intended recipient, you are hereby notified that you have received this in error and any review, dissemination, or copying is strictly prohibited. If you are not an addressee, any disclosure or copying of the contents of this e-mail, or any action taken or not taken in reliance on it, is strictly unauthorized and may be unlawful. If you are not an addressee, please destroy the message and inform the sender immediately at the number, address or Email address above. This e-mail transmission and any accompanying material may contain embedded metadata. Any included metadata is confidential or privileged information and is not intended to be viewed by a non-client recipient. > > > > -----Original Message----> From: Mercedes Montagnes [mailto:MMontagnes@thejusticecenter.org] > Sent: Tuesday, May 02, 2017 11:45 AM > To: Paul Hebert; Mary Roper > Cc: Renatti Dupont; White, Winston; Clark, Colin; 'nvora@jmbm.com'; > Jeffrey Cody; Steven Scheckman > Subject: RE: Ball v. Leblanc > > Counsel, > > I am responding because Steve is out of pocket right now. > > Are you now conceding that the vents were in an open position last summer? > > We are concerned about the additional time this matter will take to resolve and feel that the late request to the Special Master puts him in a bad position and delays possible relief to our clients. This matter has been ongoing for four days and your clients have complete control over the situation. > > In consultation with our expert, we understand this to be a major health and safety issue. As you also know, we also have a response to your appeal due next week and I am weeks away from giving birth. Given these concerns, and our explicit knowledge that the vents were fully operational at the time that Mr. Hernandez visited the tier, we feel that we must make the Court aware of the situation. > > There is no alteration being requested. We are asking for the condition which was observed by the all parties to be restored. > > We are moving ahead with our plan to put this before the Court. > > Sincerely, > > > Mercedes Montagnes > The Promise of Justice Initiative > 636 Baronne St. > New Orleans, LA 70113 > (504) 529-5955

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 4 of 20
> Mercedesm@thejusticecenter.org<mailto:Mercedesm@thejusticecenter.org> > > This message is a PRIVILEGED AND CONFIDENTIAL communication. This message and all attachments are a private communication sent by a law office and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you. > > -----Original Message----> From: Paul Hebert [mailto:pjhebert@ohllc.com] > Sent: Tuesday, May 2, 2017 11:36 AM > To: Mary Roper <maryr@SCWLLP.COM> > Cc: Renatti Dupont <rsdupont@ohllc.com>; White, Winston > <WhiteW@ag.louisiana.gov>; Mercedes Montagnes > <MMontagnes@thejusticecenter.org>; Clark, Colin > <ClarkC@ag.louisiana.gov>; 'nvora@jmbm.com' <nvora@jmbm.com>; Jeffrey > Cody <jeffreyc@scwllp.com>; Steven Scheckman <steve@SSWETHICSLAW.COM> > Subject: Re: Ball v. Leblanc > Importance: High > > Counsel: No, I do not need the picture with your explanation below. My > stumbling is simply I want to make sure the vent system is the same as what was presented to the expert and all of us at the site visit last year and is the same in every way as what the expert was testifying about at > the trial or hearing. there should not be any changes unless a motion is > filed with clear explanation as to why this has changed and then request a hearing on the need for a change. > > > Paul J. Hebert > Ottinger Hebert, L.L.C. > 13 13 W. Pinhook Road (70503) > P.O. Drawer 52606 > Lafayette, Louisiana 70505-2606 > Telephone: (337) 232-2606 > Telecopier: (337) 232-9867 > Email: pjhebert@ohllc.com > Confidentiality Notice > This message is being sent by or on behalf of a lawyer. It is intended > exclusively for the individual or entity to which it is addressed. > This communication may contain information that is proprietary, > privileged or confidential or otherwise legally exempt from > disclosure. The information herein may also be protected by the > Electronic Communications Privacy Act, > 18 U.S.C.A. §§2510-2521. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message. > > > > > >> On 5/2/17, 11:19 AM, "Mary Roper" <maryr@SCWLLP.COM> wrote: >> >> Special Master, >> >> The louvers that we are talking about are not visible from the >> pictures that I have. They are inside of the walls behind the >> exhaust vents is my understanding. In order to access them, you have

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 5 of 20
>> to go into the pipe area behind the tier. Do you want someone at LSP >> to go in there and take a picture of them? >> >> Mary E. Roper >> Attorney at Law >> Shows, Cali & Walsh, L.L.P. >> 628 St. Louis Street (70802) >> P.O. Drawer 4425 >> Baton Rouge, LA 70821 >> Telephone: 225.346.1461 >> Fax: 225.346.1467 >> >> CONFIDENTIALITY NOTICE: This communication and any attachments thereto, >> constitute an "electronic communication" within the meaning of the >> Electronic Communications Privacy Act, 18 U.S.C.A. §2510, and >> disclosure of these contents is limited to the recipient(s) intended >> by the sender of this messages. Unless expressly stated otherwise, >> this message and any documents accompanying this Email transmission >> are confidential and may be subject to the attorney client privilege >> or deemed work product documents. The Sender's expectation of privacy >> regarding the content of this e-mail message and any documents >> accompanying this transmission is extremely high. This message is >> intended solely for the addressee(s). If the reader of this message >> is not the intended recipient, you are hereby notified that you have >> received this in error and any review, dissemination, or copying is >> strictly prohibited. If you are not an addressee, any disclosure or >> copying of the contents of this e-mail, or any action taken or not >> taken in reliance on it, is strictly unauthorized and may be unlawful. >> If you are not an addressee, please destroy the message and inform >> the sender immediately at the number, address or Email address above. This e-mail transmission and any accompanying material may >> contain embedded metadata. Any included metadata is confidential or >> privileged information and is not intended to be viewed by a >> non-client recipient. >> >> >> >> -----Original Message---->> From: Paul Hebert [mailto:pjhebert@ohllc.com] >> Sent: Tuesday, May 02, 2017 11:02 AM >> To: Mary Roper; Steven Scheckman >> Cc: Renatti Dupont; White, Winston; Mercedes Montagnes; Clark, Colin; >> 'nvora@jmbm.com'; Jeffrey Cody >> Subject: Re: Ball v. Leblanc >> >> I want to understand the issue before I make any decision. Can >> someone send me a picture? >> >> >> Paul J. Hebert >> Ottinger Hebert, L.L.C. >> 13 13 W. Pinhook Road (70503) >> P.O. Drawer 52606 >> Lafayette, Louisiana 70505-2606 >> Telephone: (337) 232-2606 >> Telecopier: (337) 232-9867 >> Email: pjhebert@ohllc.com

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 6 of 20
>> Confidentiality Notice >> This message is being sent by or on behalf of a lawyer. It is >> intended exclusively for the individual or entity to which it is >> addressed. This communication may contain information that is >> proprietary, privileged or confidential or otherwise legally exempt >> from disclosure. The information herein may also be protected by the >> Electronic Communications Privacy Act, >> 18 U.S.C.A. §§2510-2521. If you are not the named addressee, you are >> not authorized to read, print, retain, copy or disseminate this >> message or any part of it. If you have received this message in >> error, please notify the sender immediately by e-mail and delete all copies of the message. >> >> >> >> >> >>> On 5/2/17, 10:42 AM, "Mary Roper" <maryr@SCWLLP.COM> wrote: >>> >>> Steven, >>> >>> We are not fighting you on this. If the Special Master will >>> authorize us to open the louvers within the vents, we will do so. >>> >>> Mary E. Roper >>> Attorney at Law >>> Shows, Cali & Walsh, L.L.P. >>> 628 St. Louis Street (70802) >>> P.O. Drawer 4425 >>> Baton Rouge, LA 70821 >>> Telephone: 225.346.1461 >>> Fax: 225.346.1467 >>> >>> CONFIDENTIALITY NOTICE: This communication and any attachments thereto, >>> constitute an "electronic communication" within the meaning of the >>> Electronic Communications Privacy Act, 18 U.S.C.A. §2510, and >>> disclosure of these contents is limited to the recipient(s) intended >>> by the sender of this messages. Unless expressly stated otherwise, >>> this message and any documents accompanying this Email transmission >>> are confidential and may be subject to the attorney client privilege >>> or deemed work product documents. The Sender's expectation of >>> privacy regarding the content of this e-mail message and any >>> documents accompanying this transmission is extremely high. This >>> message is intended solely for the addressee(s). If the reader of >>> this message is not the intended recipient, you are hereby notified >>> that you have received this in error and any review, dissemination, >>> or copying is strictly prohibited. If you are not an addressee, any >>> disclosure or copying of the contents of this e-mail, or any action >>> taken or not taken in reliance on it, is strictly unauthorized and may be unlawful. >>> If you are not an addressee, please destroy the message and inform >>> the sender immediately at the number, address or Email address >>> above. This e-mail transmission and any accompanying material may >>> contain embedded metadata. Any included metadata is confidential or >>> privileged information and is not intended to be viewed by a >>> non-client recipient. >>> >>> >>> -----Original Message-----

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 7 of 20
>>> From: Steven Scheckman [mailto:steve@SSWETHICSLAW.COM] >>> Sent: Tuesday, May 02, 2017 9:20 AM >>> To: Mary Roper >>> Cc: Renatti Dupont; Paul Hebert; White, Winston; Mercedes Montagnes; >>> Clark, Colin; 'nvora@jmbm.com'; Jeffrey Cody >>> Subject: RE: Ball v. Leblanc >>> >>> Counsel, >>> >>> With all due respect, this is simply not accurate and misstates the >>> record. If your clients have altered the ventilation system at all, >>> they would have had to seek leave from us to alter the status quo >>> and the Court. They never did so. >>> >>> As part of the investigation of defendants proposed remedy, the >>> parties went through every change to the tier in detail and >>> defendants provided extensive documentation of those changes. >>> Closing of the exhaust ventilation was not mentioned. We invite you >>> to revisit the Joint Stipulation of the parties which is attached >>> for your convenience. Had it been mentioned, it is something that >>> neither plaintiffs nor plaintiffs' expert would have agreed to (as >>> it is a violation of health and safety code and causes significant issues for our clients). >>> >>> Further, I invite you to review the attached transcript from the >>> hearing on this matter and particularly the testimony of Shane >>> Hernandez- the court appointed expert in this matter. He makes clear >>> that the exhaust ventilation system played a key role in sucking the >>> air through the hole in the door. Moreover, the judge's operative >>> injunction explicitly states that the relief works by sucking the >>> cool air into the tier because of the exhaust fans and that the cool >>> air eventually exits the tier by being sucked out through the exhaust fans. >>> Give the obviously critical importance of the mechanism for having >>> relief afforded to our clients for an ongoing eighth amendment >>> violation, it appears plain that your clients have chosen to alter >>> the exhaust fan operation from what the judge's understanding of the >>> situation was. >>> >>> Our clients have felt a big difference and have been told by >>> wardens, staff, and others that the vents have been turned off to >>> prevent the cooling effect from the hole in the door. >>> >>> This violates the order to maintain the status quo, and the >>> injunctive order. For this reason, unless we can sort this out very >>> soon, we plan to file with the Court to have it involved to address these concerns. >>> Unfortunately, addressing this requires your clients to admit what >>> is very obvious and return the vents to their previous positions >>> (from two weeks ago for example when our clients report the vents >>> were working >>> fine) immediately. Otherwise, we will need to bring this to the >>> Court attention. Please let us know your position by noon today. >>> >>> >>> Steve Scheckman >>> Schiff, Scheckman & White LLP >>> 650 Poydras Street, Suite 2760 >>> New Orleans, Louisiana 70130 >>> Phone: 504.309.7888

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>>> Fax: 504.518.4831 >>> Email: steve@sswethicslaw.com >>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sswethicslaw >>> .c >>> o >>> m&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=_nf7esEp_ >>> qS >>> 4 >>> pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=8haduCfMVQtTJ1CC8NQcoC9ai2x4c-U8R4 >>> 1P >>> - BcVLgU&s=HFwKk7fNlwaNZkXfUvGqxIzpfsvym_9tbcBGzRS2bKQ&e= >>> >>> NOTICE: The information contained in this E-mail transmittal, >>> including any attached document(s), is privileged and confidential. >>> The information is intended only for the use of the named recipient. >>> If you are not the named recipient, you are hereby notified that any >>> use, disclosure, copying, storage, distribution or other use of all >>> or any portion of this message and of the contents hereof is >>> strictly prohibited. If you received this message in error, please >>> immediately notify the sender by reply e-mail and delete this >>> message in its entirety. >>> >>> -----Original Message---->>> From: Mary Roper [mailto:maryr@SCWLLP.COM] >>> Sent: Monday, May 01, 2017 8:13 PM >>> To: Steven Scheckman <steve@SSWETHICSLAW.COM> >>> Cc: Renatti Dupont <rsdupont@ohllc.com>; Paul Hebert >>> <pjhebert@ohllc.com>; White, Winston <WhiteW@ag.louisiana.gov>; >>> Mercedes Montagnes <MMontagnes@thejusticecenter.org>; Clark, Colin >>> <ClarkC@ag.louisiana.gov>; 'nvora@jmbm.com' <nvora@jmbm.com>; >>> Jeffrey Cody <jeffreyc@scwllp.com> >>> Subject: RE: Ball v. Leblanc >>> Importance: High >>> >>> Steven, >>> >>> We were not proposing an earlier site visit, although we are not >>> against it. We were just letting you know that we are already >>> scheduled to be out there on Thursday and would be amenable to >>> meeting with you on site to deal with the vent issue, if you would >>> like. We were also open to having your expert attend, if that would >>> be of benefit to you. >>> >>> For clarification, the louvers that I referenced are not the louvers >>> over the windows, but the louvers within the exhaust vents. These >>> louvers are not visible from the inside of the tier. The louvers >>> within the exhaust vents have to be closed in order to prevent the >>> air from being sucked out of the exhaust vents. In speaking with >>> our clients, it is their position that the louvers within the >>> exhaust system were closed as a part of the experimental measure >>> with the Icy Breeze units. They are adamant about this. Thus, in >>> order to maintain the status quo that existed when the experimental >>> measures were implemented, they maintain that the louvers within the >>> exhaust vents had to be kept closed. They assert that the vents >>> were in the closed position during the previous Summer. >>> >>> Nevertheless, our clients will open the louvers within the exhaust

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>>> system if that is what you want them to do. They are just concerned >>> that you will not like the results, as the temperature in the cells >>> is almost certain to rise. Accordingly, we are offering for you to >>> come and inspect the vents and see what happens when the vents are opened. >>> >>> However, since there is disagreement as to the position that the >>> louvers were in last Summer, there is concern about adjusting the >>> louvers without authorization from the Court. My clients strongly >>> believe that opening the louvers within the exhaust vents will cause >>> a change in the status quo and they do not want to alter anything >>> without the Court's permission. >>> >>> As I stated, we are open to suggestion on how to resolve this issue. >>> Please advise. >>> >>> Regards, >>> >>> Mary E. Roper >>> Attorney at Law >>> Shows, Cali & Walsh, L.L.P. >>> 628 St. Louis Street (70802) >>> P.O. Drawer 4425 >>> Baton Rouge, LA 70821 >>> Telephone: 225.346.1461 >>> Fax: 225.346.1467 >>> >>> CONFIDENTIALITY NOTICE: This communication and any attachments thereto, >>> constitute an "electronic communication" within the meaning of the >>> Electronic Communications Privacy Act, 18 U.S.C.A. §2510, and >>> disclosure of these contents is limited to the recipient(s) intended >>> by the sender of this messages. Unless expressly stated otherwise, >>> this message and any documents accompanying this Email transmission >>> are confidential and may be subject to the attorney client privilege >>> or deemed work product documents. The Sender's expectation of >>> privacy regarding the content of this e-mail message and any >>> documents accompanying this transmission is extremely high. This >>> message is intended solely for the addressee(s). If the reader of >>> this message is not the intended recipient, you are hereby notified >>> that you have received this in error and any review, dissemination, >>> or copying is strictly prohibited. If you are not an addressee, any >>> disclosure or copying of the contents of this e-mail, or any action >>> taken or not taken in reliance on it, is strictly unauthorized and may be unlawful. >>> If you are not an addressee, please destroy the message and inform >>> the sender immediately at the number, address or Email address >>> above. This e-mail transmission and any accompanying material may >>> contain embedded metadata. Any included metadata is confidential or >>> privileged information and is not intended to be viewed by a >>> non-client recipient. >>> >>> >>> >>> -----Original Message---->>> From: Steven Scheckman [mailto:steve@SSWETHICSLAW.COM] >>> Sent: Monday, May 01, 2017 6:36 PM >>> To: Mary Roper; Paul Hebert; White, Winston; Mercedes Montagnes; >>> Clark, Colin; 'nvora@jmbm.com'; Jeffrey Cody >>> Cc: Renatti Dupont

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>>> Subject: RE: Ball v. Leblanc >>> >>> Counsel, >>> >>> We are not sure what you are referring to for Thursday. Are you >>> proposing an additional site visit other than May 18? >>> >>> The Louvers (i.e. the windows on the tiers) are not at issue here. >>> >>> We have never agreed to have the exhaust turned off for our clients. >>> It was never included in any materials and never mentioned in the >>> extensive negotiations or hearings on this matter. This is the very >>> first time this is being mentioned at all. >>> >>> As the expert testimony provided by this Court makes clear, the >>> exhaust system plays an integral role in the relief. >>> >>> We obviously do not agree with your clients position and feel that >>> this matter needs to be brought to the Court's attention as soon as possible. >>> We will plan to do so unless the status quo from last summer is restored. >>> >>> >>> Steve Scheckman >>> Schiff, Scheckman & White LLP >>> 650 Poydras Street, Suite 2760 >>> New Orleans, Louisiana 70130 >>> Phone: 504.309.7888 >>> Fax: 504.518.4831 >>> Email: steve@sswethicslaw.com >>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sswethicslaw >>> .c >>> o >>> m&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=_nf7esEp_ >>> qS >>> 4 >>> pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=8haduCfMVQtTJ1CC8NQcoC9ai2x4c-U8R4 >>> 1P >>> - BcVLgU&s=HFwKk7fNlwaNZkXfUvGqxIzpfsvym_9tbcBGzRS2bKQ&e= >>> >>> NOTICE: The information contained in this E-mail transmittal, >>> including any attached document(s), is privileged and confidential. >>> The information is intended only for the use of the named recipient. >>> If you are not the named recipient, you are hereby notified that any >>> use, disclosure, copying, storage, distribution or other use of all >>> or any portion of this message and of the contents hereof is >>> strictly prohibited. If you received this message in error, please >>> immediately notify the sender by reply e-mail and delete this >>> message in its entirety. >>> >>> -----Original Message---->>> From: Mary Roper [mailto:maryr@SCWLLP.COM] >>> Sent: Monday, May 01, 2017 5:00 PM >>> To: Paul Hebert <pjhebert@ohllc.com>; Steven Scheckman >>> <steve@SSWETHICSLAW.COM>; White, Winston <WhiteW@ag.louisiana.gov>; >>> Mercedes Montagnes <MMontagnes@thejusticecenter.org>; Clark, Colin >>> <ClarkC@ag.louisiana.gov>; 'nvora@jmbm.com' <nvora@jmbm.com>; >>> Jeffrey Cody <jeffreyc@scwllp.com>

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>>> Cc: Renatti Dupont <rsdupont@ohllc.com> >>> Subject: RE: Ball v. Leblanc >>> >>> All, >>> >>> We have been conferring with our clients regarding this issue in >>> order to make sure that we have a correct understanding of the >>> mechanics of what has occurred. Our clients assure us that the >>> status quo for the experiment was that the louvers within the vents >>> in the exhaust system for Tier C were in the closed position. We >>> are happy to open the louvers if that is what Plaintiffs desire, >>> however we believe that this will negate the cooling effect of the >>> experiment. Moreover, as this will be a change in the status quo, >>> we will need permission from the court in order to do so. We will >>> be at Angola on Thursday in the event that Plaintiffs' >>> counsel would like to witness the opening of the vents, along with >>> their expert. We are open to suggestion on how this should occur. >>> >>> Regards, >>> >>> Mary E. Roper >>> Attorney at Law >>> Shows, Cali & Walsh, L.L.P. >>> 628 St. Louis Street (70802) >>> P.O. Drawer 4425 >>> Baton Rouge, LA 70821 >>> Telephone: 225.346.1461 >>> Fax: 225.346.1467 >>> >>> CONFIDENTIALITY NOTICE: This communication and any attachments thereto, >>> constitute an "electronic communication" within the meaning of the >>> Electronic Communications Privacy Act, 18 U.S.C.A. §2510, and >>> disclosure of these contents is limited to the recipient(s) intended >>> by the sender of this messages. Unless expressly stated otherwise, >>> this message and any documents accompanying this Email transmission >>> are confidential and may be subject to the attorney client privilege >>> or deemed work product documents. The Sender's expectation of >>> privacy regarding the content of this e-mail message and any >>> documents accompanying this transmission is extremely high. This >>> message is intended solely for the addressee(s). If the reader of >>> this message is not the intended recipient, you are hereby notified >>> that you have received this in error and any review, dissemination, >>> or copying is strictly prohibited. If you are not an addressee, any >>> disclosure or copying of the contents of this e-mail, or any action >>> taken or not taken in reliance on it, is strictly unauthorized and may be unlawful. >>> If you are not an addressee, please destroy the message and inform >>> the sender immediately at the number, address or Email address >>> above. This e-mail transmission and any accompanying material may >>> contain embedded metadata. Any included metadata is confidential or >>> privileged information and is not intended to be viewed by a >>> non-client recipient. >>> >>> >>> -----Original Message---->>> From: Paul Hebert [mailto:pjhebert@ohllc.com] >>> Sent: Monday, May 01, 2017 3:34 PM >>> To: Steven Scheckman; White, Winston; Mercedes Montagnes; Clark,

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 12 of 20
>>> Colin; 'nvora@jmbm.com'; Mary Roper; Jeffrey Cody >>> Cc: Renatti Dupont >>> Subject: Re: Ball v. Leblanc >>> >>> Understood. Monday has not ended and I see from the Defendants >>> email that they would discuss the situation with you all today. >>> Keep me informed. >>> >>> >>> Paul J. Hebert >>> Ottinger Hebert, L.L.C. >>> 13 13 W. Pinhook Road (70503) >>> P.O. Drawer 52606 >>> Lafayette, Louisiana 70505-2606 >>> Telephone: (337) 232-2606 >>> Telecopier: (337) 232-9867 >>> Email: pjhebert@ohllc.com >>> Confidentiality Notice >>> This message is being sent by or on behalf of a lawyer. It is >>> intended exclusively for the individual or entity to which it is addressed. >>> This communication may contain information that is proprietary, >>> privileged or confidential or otherwise legally exempt from >>> disclosure. The information herein may also be protected by the >>> Electronic Communications Privacy Act, >>> 18 U.S.C.A. §§2510-2521. If you are not the named addressee, you are >>> not authorized to read, print, retain, copy or disseminate this >>> message or any part of it. If you have received this message in >>> error, please notify the sender immediately by e-mail and delete all >>> copies of the message. >>> >>> >>> >>> >>> >>>> On 5/1/17, 3:03 PM, "Steven Scheckman" <steve@SSWETHICSLAW.COM> wrote: >>>> >>>> Special Master, >>>> >>>> We are available then but we also feel that there is some urgency >>>> regarding this issue as it is a violation of health and safety codes. >>>> We also feel that this might be retaliatory in nature. For that >>>> reason, Plaintiffs might file with the Court prior to Thursday if >>>> the conditions are not rectified to our satisfaction. >>>> >>>> Steve Scheckman >>>> Schiff, Scheckman & White LLP >>>> 650 Poydras Street, Suite 2760 >>>> New Orleans, Louisiana 70130 >>>> Phone: 504.309.7888 >>>> Fax: 504.518.4831 >>>> Email: steve@sswethicslaw.com >>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sswethicslaw. >>>> c >>>> o >>>> m&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=_nf7esEp >>>> _q >>>> S

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 13 of 20
>>>> 4 >>>> pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=PeqxHXta__sWm4pO7WaM0cuRQFT8XGGu7 >>>> J6 w C rcDehw&s=fn62ke8gFmutOfOQCdH0CYmV6U6g0zka15A0GyLbTCE&e= >>>> >>>> NOTICE: The information contained in this E-mail transmittal, >>>> including any attached document(s), is privileged and confidential. >>>> The information is intended only for the use of the named recipient. >>>> If you are not the named recipient, you are hereby notified that >>>> any use, disclosure, copying, storage, distribution or other use of >>>> all or any portion of this message and of the contents hereof is >>>> strictly prohibited. If you received this message in error, please >>>> immediately notify the sender by reply e-mail and delete this >>>> message in its entirety. >>>> >>>> -----Original Message---->>>> From: Paul Hebert [mailto:pjhebert@ohllc.com] >>>> Sent: Monday, May 01, 2017 2:16 PM >>>> To: Steven Scheckman <steve@SSWETHICSLAW.COM>; White, Winston >>>> <WhiteW@ag.louisiana.gov>; Mercedes Montagnes >>>> <MMontagnes@thejusticecenter.org>; Clark, Colin >>>> <ClarkC@ag.louisiana.gov>; 'nvora@jmbm.com' <nvora@jmbm.com>; Mary >>>> Roper <maryr@SCWLLP.COM>; Jeffrey Cody <jeffreyc@scwllp.com> >>>> Cc: Renatti Dupont <rsdupont@ohllc.com> >>>> Subject: Re: Ball v. Leblanc >>>> Importance: High >>>> >>>> Steven: I acknowledge receipt of your email. I have no problem >>>> with the request regarding Mr. Garon and equipment to be used at >>>> our site visit in May. However, I recognize the need for the State >>>> to review and acknowledge if this is acceptable so we will wait on their reply. >>>> >>>> In addition, I feel it is appropriate for us to have a joint phone conf. >>>> later this week or early next week to discuss the recent >>>> developments and the site visit. >>>> >>>> Please let me know is all parties can attend a joint phone conf. on >>>> Thursday at 1:30 of this week. >>>> >>>> >>>> Paul J. Hebert >>>> Ottinger Hebert, L.L.C. >>>> 13 13 W. Pinhook Road (70503) >>>> P.O. Drawer 52606 >>>> Lafayette, Louisiana 70505-2606 >>>> Telephone: (337) 232-2606 >>>> Telecopier: (337) 232-9867 >>>> Email: pjhebert@ohllc.com >>>> Confidentiality Notice >>>> This message is being sent by or on behalf of a lawyer. It is >>>> intended exclusively for the individual or entity to which it is addressed. >>>> This communication may contain information that is proprietary, >>>> privileged or confidential or otherwise legally exempt from >>>> disclosure. The information herein may also be protected by the >>>> Electronic Communications Privacy Act, >>>> 18 U.S.C.A. §§2510-2521. If you are not the named addressee, you >>>> are not authorized to read, print, retain, copy or disseminate this >>>> message or any part of it. If you have received this message in

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 14 of 20
>>>> error, please notify the sender immediately by e-mail and delete >>>> all copies of the message. >>>> >>>> >>>> >>>> >>>> >>>>> On 5/1/17, 2:09 PM, "Steven Scheckman" <steve@SSWETHICSLAW.COM> wrote: >>>>> >>>>> Special Master Hebert and Counsel, >>>>> >>>>> As a follow-up to my email of April 28, 2017 advising that David >>>>> Garon will be accompanying me for the site visit on May 18, 2017, >>>>> and further advising that I would inform you of the instruments he >>>>> intended to bring with him on the site visit, please be advised >>>>> that David Garon will bring with him for the site visit the >>>>> following instruments for taking airflow, pressure, temperature >>>>> and humidity >>>>> measurements: >>>>> >>>>> 1. Shortridge 8400 Series Flow Hood Kit >>>>> 2. ADM-870C Air Data Multi Meter >>>>> 3. Extech RH350 Temperature and Humidity Meter >>>>> >>>>> Please advise me if there will be any problem with Mr. Garon >>>>> bringing the above referenced instruments with him for the site visit. >>>>> >>>>> Finally, we are still very concerned about the reports we related >>>>> to you on Friday and are awaiting a response. Given the >>>>> seriousness of the reports we request a response from counsel by >>>>> the close of business today. >>>>> >>>>> Thank you. >>>>> >>>>> Steve Scheckman >>>>> Schiff, Scheckman & White LLP >>>>> 650 Poydras Street, Suite 2760 >>>>> New Orleans, Louisiana 70130 >>>>> Phone: 504.309.7888 >>>>> Fax: 504.518.4831 >>>>> Email: steve@sswethicslaw.com >>>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sswethicslaw. >>>>> c >>>>> om&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=_nf7es >>>>> Ep >>>>> _ >>>>> q >>>>> S4pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=PeqxHXta__sWm4pO7WaM0cuRQFT8XG >>>>> Gu >>>>> 7 J 6wCrcDehw&s=fn62ke8gFmutOfOQCdH0CYmV6U6g0zka15A0GyLbTCE&e= >>>>> >>>>> NOTICE: The information contained in this E-mail transmittal, >>>>> including any attached document(s), is privileged and confidential. >>>>> The information is intended only for the use of the named recipient. >>>>> If you are not the named recipient, you are hereby notified that >>>>> any use, disclosure, copying, storage, distribution or other use >>>>> of all or any portion of this message and of the contents hereof

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 15 of 20
>>>>> is strictly prohibited. If you received this message in error, >>>>> please immediately notify the sender by reply e-mail and delete >>>>> this message in its entirety. >>>>> >>>>> -----Original Message---->>>>> From: White, Winston [mailto:WhiteW@ag.louisiana.gov] >>>>> Sent: Friday, April 28, 2017 4:25 PM >>>>> To: Steven Scheckman <steve@SSWETHICSLAW.COM>; Mercedes Montagnes >>>>> <MMontagnes@thejusticecenter.org>; pjhebert@ohllc.com; >>>>> rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; >>>>> 'nvora@jmbm.com' <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>; >>>>> Jeffrey Cody <jeffreyc@scwllp.com> >>>>> Subject: RE: Ball v. Leblanc >>>>> >>>>> Counsel, >>>>> >>>>> >>>>> We have received your email and have conveyed your concerns to the >>>>> Wardens. We are currently working with them to get to the bottom >>>>> of this issue. We will get back with you on Monday to discuss further. >>>>> >>>>> >>>>> Thank you, >>>>> >>>>> >>>>> Winston White >>>>> Assistant Attorney General >>>>> Louisiana Department of Justice >>>>> Criminal Division >>>>> P.O Box 94005 >>>>> Baton Rouge, Louisiana 70804 >>>>> (225) 326-6269 (Telephone) >>>>> (225) 326-6297 (Fax) >>>>> >>>>> The information contained in this transmission may contain >>>>> privileged and confidential information. It is intended only for >>>>> the use of the >>>>> person(s) named above. If you are not the intended recipient, you >>>>> are hereby notified that any review, dissemination, distribution, >>>>> or duplication of this communication is strictly prohibited. If >>>>> you are not the intended recipient, please contact the sender by >>>>> reply e-mail and destroy all copies of the original message. To >>>>> reply to our e-mail administrator directly, please send an e-mail >>>>> to postmaster@ag.state.la.us<mailto:postmaster@ag.state.la.us>. >>>>> ________________________________ >>>>> From: Steven Scheckman <steve@SSWETHICSLAW.COM> >>>>> Sent: Friday, April 28, 2017 11:51 AM >>>>> To: Mercedes Montagnes; White, Winston; pjhebert@ohllc.com; >>>>> rsdupont@ohllc.com; Clark, Colin; 'nvora@jmbm.com'; Mary Roper; >>>>> Jeffrey Cody >>>>> Subject: RE: Ball v. Leblanc >>>>> >>>>> Special Master Hebert, >>>>> >>>>> Please be advised that David Garon will also accompany me on May >>>>> 18, 2017, for the site visit and we will send the information >>>>> about instruments he may bring with him soon. Thank you.

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 16 of 20
>>>>> >>>>> Steve Scheckman >>>>> Schiff, Scheckman & White LLP >>>>> 650 Poydras Street, Suite 2760 >>>>> New Orleans, Louisiana 70130 >>>>> Phone: 504.309.7888 >>>>> Fax: 504.518.4831 >>>>> Email: steve@sswethicslaw.com<mailto:steve@sswethicslaw.com> >>>>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sswethicslaw. >>>>> c >>>>> om&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=_nf7es >>>>> Ep >>>>> _ >>>>> q >>>>> S4pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=PeqxHXta__sWm4pO7WaM0cuRQFT8XG >>>>> Gu >>>>> 7 J 6wCrcDehw&s=fn62ke8gFmutOfOQCdH0CYmV6U6g0zka15A0GyLbTCE&e= >>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sswethics >>>>> la >>>>> w >>>>> .>>>com_&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r= >>>>> _n >>>>> f >>>>> 7esEp >>>>> _qS4pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=PeqxHXta__sWm4pO7WaM0cuRQFT8 >>>>> XG G u >>>>> 7J6wCrcDehw&s=OFX5EnM_9CncCy1ULxyVXSmx3-QLMh2whM64qaKpMk0&e= > >>>>> [Email SSW Logo with Name - flat] >>>>> NOTICE: The information contained in this E-mail transmittal, >>>>> including any attached document(s), is privileged and confidential. >>>>> The information is intended only for the use of the named recipient. >>>>> If you are not the named recipient, you are hereby notified that >>>>> any use, disclosure, copying, storage, distribution or other use >>>>> of all or any portion of this message and of the contents hereof >>>>> is strictly prohibited. If you received this message in error, >>>>> please immediately notify the sender by reply e-mail and delete >>>>> this message in its entirety. >>>>> >>>>> From: Mercedes Montagnes [mailto:MMontagnes@thejusticecenter.org] >>>>> Sent: Friday, April 28, 2017 10:55 AM >>>>> To: White, Winston <WhiteW@ag.louisiana.gov>; pjhebert@ohllc.com; >>>>> rsdupont@ohllc.com; Clark, Colin <ClarkC@ag.louisiana.gov>; Steven >>>>> Scheckman <steve@SSWETHICSLAW.COM>; 'nvora@jmbm.com' >>>>> <nvora@jmbm.com>; Mary Roper <maryr@SCWLLP.COM>; Jeffrey Cody >>>>> <jeffreyc@scwllp.com> >>>>> Subject: RE: Ball v. Leblanc >>>>> Importance: High >>>>> >>>>> Counsel, >>>>> >>>>> We had reports from our clients on Tuesday that the vents in the >>>>> cells had been turned off. We planned to address with you but >>>>> wanted to give it a couple of days to see if it resolved. >>>>> >>>>> Our clients report that the inmate in charge of maintenance >>>>> confirmed the vents had been turned off and told them to discuss >>>>> the vents with the Warden if they wanted to them back on. When the

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 17 of 20
>>>>> Warden came around later that day he told our clients he would not >>>>> turn on the ventilation system because it was sucking the air from >>>>> the main control area. This is in direct violation of the Judge's >>>>> existing >>>>> orders- including an order to maintain the status quo. In >>>>> addition, as we have heard from several experts this ventilation >>>>> is required for the health and safety of our clients to ensure that air circulates. >>>>> Our clients use the toilet and shower on this tier. >>>>> >>>>> This is especially concerning considering the email exchange of >>>>> April 11, >>>>> 2017 and the history of this case. >>>>> >>>>> Please advise us immediately of the actions you have taken to >>>>> rectify this situation. >>>>> >>>>> Sincerely, >>>>> >>>>> >>>>> Mercedes Montagnes >>>>> The Promise of Justice Initiative >>>>> 636 Baronne St. >>>>> New Orleans, LA 70113 >>>>> (504) 529-5955 >>>>> Mercedesm@thejusticecenter.org<mailto:Mercedesm@thejusticecenter.o >>>>> rg >>>>> < >>>>> m >>>>> a >>>>> ilt >>>>> o:Mercedesm@thejusticecenter.org%3cmailto:Mercedesm@thejusticecenter. >>>>> o >>>>> r >>>>> g>> >>>>> >>>>> This message is a PRIVILEGED AND CONFIDENTIAL communication. This >>>>> message and all attachments are a private communication sent by a >>>>> law office and may be confidential or protected by privilege. If >>>>> you are not the intended recipient, you are hereby notified that >>>>> any disclosure, copying, distribution or use of the information >>>>> contained in or attached to this message is strictly prohibited. >>>>> Please notify the sender of the delivery error by replying to this >>>>> message, and then delete it from your system. >>>>> Thank you. >>>>> >>>>> >>>>> >>>>> From: Mercedes Montagnes >>>>> Sent: Tuesday, April 11, 2017 2:26 PM >>>>> To: 'White, Winston' >>>>> <WhiteW@ag.louisiana.gov<mailto:WhiteW@ag.louisiana.gov>>; >>>>> pjhebert@ohllc.com<mailto:pjhebert@ohllc.com>; >>>>> rsdupont@ohllc.com<mailto:rsdupont@ohllc.com>; Clark, Colin >>>>> <ClarkC@ag.louisiana.gov<mailto:ClarkC@ag.louisiana.gov>>; >>>>> steve@SSWETHICSLAW.COM<mailto:steve@SSWETHICSLAW.COM>; 'nvora@jmbm.com' >>>>> <nvora@jmbm.com<mailto:nvora@jmbm.com>>; Mary Roper >>>>> <maryr@SCWLLP.COM<mailto:maryr@SCWLLP.COM>>; Jeffrey Cody

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 18 of 20
>>>>> <jeffreyc@scwllp.com<mailto:jeffreyc@scwllp.com>> >>>>> Subject: RE: Ball v. Leblanc >>>>> >>>>> Thank you counsel. I understand from my clients that the vents >>>>> began functioning again last week. They are concerned that they >>>>> appear to be operating at a slower rate than they have in the past. >>>>> >>>>> We want to be sure to be aware of any changes to our clients >>>>> conditions >>>>> - so please keep us informed or let us know if you object to doing so. >>>>> >>>>> Best, >>>>> >>>>> >>>>> From: White, Winston [mailto:WhiteW@ag.louisiana.gov] >>>>> Sent: Tuesday, April 11, 2017 10:30 AM >>>>> To: pjhebert@ohllc.com<mailto:pjhebert@ohllc.com>; >>>>> rsdupont@ohllc.com<mailto:rsdupont@ohllc.com>; Clark, Colin >>>>> <ClarkC@ag.louisiana.gov<mailto:ClarkC@ag.louisiana.gov>>; White, >>>>> Winston <WhiteW@ag.louisiana.gov<mailto:WhiteW@ag.louisiana.gov>>; >>>>> Mercedes Montagnes >>>>> <MMontagnes@thejusticecenter.org<mailto:MMontagnes@thejusticecenter. >>>>> o >>>>> r >>>>> g >>>>>>> ; steve@SSWETHICSLAW.COM<mailto:steve@SSWETHICSLAW.COM>; >>>>> 'nvora@jmbm.com' >>>>> <nvora@jmbm.com<mailto:nvora@jmbm.com>>; Mary Roper >>>>> <maryr@SCWLLP.COM<mailto:maryr@SCWLLP.COM>>; Jeffrey Cody >>>>> <jeffreyc@scwllp.com<mailto:jeffreyc@scwllp.com>> >>>>> Subject: Ball v. Leblanc >>>>> >>>>> All, >>>>> >>>>> I have spoken with the Wardens regarding the plaintiffs' >>>>> allegations of changes to the vents. The Wardens have confirmed >>>>> there have been no changes to the vents. >>>>> >>>>> >>>>> [Winston >>>>> White]<https://urldefense.proofpoint.com/v2/url?u=http-3A__ladoj.ag. >>>>> s >>>>> t>>>ate.la.us_index.aspx&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5 >>>>> t>>>A_ >>>>> t>>>C >>>>> dpgnV >>>>> fiiMM&r=_nf7esEp_qS4pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=PeqxHXta__sW >>>>> m4 >>>>> p >>>>> O >>>>> 7WaM0cuRQFT8XGGu7J6wCrcDehw&s=Y06-N0Kom2Cw8i6jxccbr8o3gvc7wIUJYL6s >>>>> 6S >>>>> >>>>> I >>>>> Y-4&e= > >>>>> >>>>> Follow us on:

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 19 of 20
>>>>> [Facebook Icon >>>>> NAVY]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.fac >>>>> eb >>>>> o >>>>> ok.>>>com_AGJeffLandry_&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A >>>>> _C >>>>> d >>>>> pgnVfiiMM >>>>> &r=_nf7esEp_qS4pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=PeqxHXta__sWm4pO7 >>>>> Wa >>>>> M >>>>> 0cu >>>>> RQFT8XGGu7J6wCrcDehw&s=_0_CYAmpVSEUXZ4piTVmCWX8XRKSEHlQcZnWYYKMRd0 >>>>> &e >>>>> = >>>>>> [Instagram Icon NAVY] >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.instagram. >>>>> c >>>>> om_>>>AGJeffLandry_&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_Cdp >>>>> gn >>>>> V >>>>> fiiMM&r=_ >>>>> nf7esEp_qS4pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=PeqxHXta__sWm4pO7WaM0 >>>>> cu >>>>> R QFT >>>>> 8XGGu7J6wCrcDehw&s=y2F141Ia9mCLJ6rRuefEB2K1FV8_PvUNhqfURWZqRF4&e= >>>>>> [Twitter Icon NAVY] >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ >>>>> AG >>>>> J >>>>> eff>>>Landry&d=DQIFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiM >>>>> eff>>>M& >>>>> eff>>>r >>>>> =_nf7esEp >>>>> _qS4pFzJEOAEizUIVSbRlAJ18vRUG44d2AE&m=PeqxHXta__sWm4pO7WaM0cuRQFT8 >>>>> XG >>>>> Gu7 >>>>> J >>>>> 6wCrcDehw&s=Arpkf_3DRAfO8uRL4biLHuD2hikOlN0JMnSvmctUAVI&e= > [Youtube >>>>> Icon NAVY] >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.youtube. >>>>> co >>>>> m >>>>> _>>>channel_UCnboN4LjTa73t5iY8fz-2DQIw&d=DQIFAw&c=euGZstcaTDllvimE >>>>> N8 >>>>> b >>>>> 7jXrw >>>>> qOf-v5A_CdpgnVfiiMM&r=_nf7esEp_qS4pFzJEOAEizUIVSbRlAJ18vRUG44d2AE& >>>>> m= >>>>> P >>>>> e >>>>> qxHXta__sWm4pO7WaM0cuRQFT8XGGu7J6wCrcDehw&s=5fE_7EPel0-AhQ5Dp3xT0U >>>>> Gh >>>>> J >>>>> z >>>>> A5EBk_pjN-ZId5XPs&e= > >>>>>

Case 3:13-cv-00368-BAJ-EWD Document 410-7 05/02/17 Page 20 of 20
>>>>> >>>>> The information contained in this transmission may contain >>>>> privileged and confidential information. It is intended only for >>>>> the use of the >>>>> person(s) named above. If you are not the intended recipient, you >>>>> are hereby notified that any review, dissemination, distribution, >>>>> or duplication of this communication is strictly prohibited. If >>>>> you are not the intended recipient, please contact the sender by >>>>> reply e-mail and destroy all copies of the original message. To >>>>> reply to our e-mail administrator directly, please send an e-mail >>>>> to postmaster@ag.state.la.us<mailto:postmaster@ag.state.la.us>. >>>>> >>>>> The information contained in this transmission may contain >>>>> privileged and confidential information. It is intended only for >>>>> the use of the >>>>> person(s) named above. If you are not the intended recipient, you >>>>> are hereby notified that any review, dissemination, distribution >>>>> or duplication of this communication is strictly prohibited. If >>>>> you are not the intended recipient, please contact the sender by >>>>> reply e-mail and destroy all copies of the original message. To >>>>> reply to our e-mail administrator directly, please send an e-mail >>>>> to postmaster@ag.state.la.us<mailto:postmaster@ag.state.la.us>. >>>>> >>>>> ________________________________ >>>>> The information contained in this transmission may contain >>>>> privileged and confidential information. It is intended only for >>>>> the use of the >>>>> person(s) named above. If you are not the intended recipient, you >>>>> are hereby notified that any review, dissemination, distribution >>>>> or duplication of this communication is strictly prohibited. If >>>>> you are not the intended recipient, please contact the sender by >>>>> reply e-mail and destroy all copies of the original message. >>>>> The information contained in this transmission may contain >>>>> privileged and confidential information. It is intended only for >>>>> the use of the >>>>> person(s) named above. If you are not the intended recipient, you >>>>> are hereby notified that any review, dissemination, distribution >>>>> or duplication of this communication is strictly prohibited. If >>>>> you are not the intended recipient, please contact the sender by >>>>> reply e-mail and destroy all copies of the original message. To >>>>> reply to our e-mail administrator directly, please send an e-mail >>>>> to postmaster@ag.state.la.us. >>>> >>> >> >

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 1 of 49 1

1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

2

ELZIE BALL, ET AL.,

: Case No. 3:13-cv-00368-BAJ-EWD

3

Plaintiffs,

:

4

v.

: Baton Rouge, Louisiana

5

Monday, August 22, 2016

JAMES M. LEBLANC, ET AL.,

: 3:13 p.m.

6

Defendants.

:

7

: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

8

TRANSCRIPT OF EVIDENTIARY HEARING

9

BEFORE THE HONORABLE BRIAN A. JACKSON,

CHIEF UNITED STATES JUDGE

10

APPEARANCES:

11

For the Plaintiffs

The Promise of Justice Initiative

12

BY: MERCEDES H. MONTAGNES, ESQ.

636 Baronne Street

13

New Orleans, LA 70113

14

Schiff, Scheckman & White LLP

BY: STEVEN R. SCHECKMAN, ESQ.

15

650 Poydras Street, Suite 2760

New Orleans, LA 70130

16

17

18 AUDIO OPERATOR:

COURTROOM PERSONNEL

19 TRANSCRIPT PREPARED BY:
20
21
22

JANICE RUSSELL TRANSCRIPTS 1418 Red Fox Circle Severance, CO 80550 (757) 422-9089 trussell31@tdsmail.com

23 Proceedings recorded by electronic sound recording; transcript
24 produced by transcription service.

25

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 2 of 49 2

1 APPEARANCES (Continued):

2 For Defendants:
3
4
5

Shows, Cali, & Walsh LLP BY: MARY E. ROPER, ESQ.
GRANT J. GUILLOT, ESQ. JAMES L. HILBURN, ESQ. 628 St. Louis Street Baton Rouge, La 70802

6

Louisiana Department of Justice

BY: WINSTON E. WHITE, ESQ.

7

Post Office Box 94005

Baton Rouge, LA 70804

8

9 ALSO PRESENT: 10 11

PAUL J. HEBERT Special Master Post Office Box 52606 Lafayette, LA 70505-2606

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 3 of 49 3

1

INDEX

2
3 WITNESSES FOR THE COURT:
4 Shane M. Hernandez

By the Court Cross

7

23

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 4 of 49 4

1

P R O C E E D I N G S

2

(Call to Order of the Court)

3

THE COURT: Good afternoon, everyone. Be seated.

4

Okay. Let's call the case.

5

THE COURTROOM DEPUTY: Civil Action 13-368-BAJ, Elzie

6 Ball, et al., versus James LeBlanc, et al.

7

THE COURT: Okay. And let me ask counsel for the

8 plaintiffs to enter their appearances from the floor podium, of

9 course.

10

MS. MONTAGNES: Good afternoon, Your Honor. Mercedes

11 Montagnes on behalf of the plaintiffs. And I'm joined by my

12 co-counsel, Steven Scheckman, who remains injured.

13

So if the Court could make the same accommodation for

14 him as it did last time, we would appreciate it.

15

THE COURT: Mr. Scheckman, you're not taking advantage

16 of this situation, I hope?

17

MR. SCHECKMAN: I'm scheduling surgery, Your Honor.

18

THE COURT: Oh, okay.

19

MS. MONTAGNES: And indeed, there's a (indiscernible)

20 back there.

21

THE COURT: I, I see evidence of that, Mr. Scheckman.

22 Well, I hope you -- good luck with the surgery. Hopefully,

23 you'll be 100 percent soon.

24

MR. SCHECKMAN: I'll be dancing next week.

25

THE COURT: Great. Hopefully, after this hearing,

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 5 of 49 5

1 we'll all be dancing.

2

MR. SCHECKMAN: That's right.

3

THE COURT: But we'll see.

4

MR. SCHECKMAN: That's right.

5

MS. ROPER: Good afternoon, Your Honor. Mary Roper on

6 behalf of the defendants, along with James Hilburn, Grant

7 Guillot, and Winston White.

8

THE COURT: Very good. Thank you, Ms. Roper.

9

Okay. This is a continuation, of course, of our last

10 hearing at which time the Court received in evidence

11 information indicating that the plaintiffs have been removed to

12 a different area of the facility. Specifically, the plaintiffs

13 have been moved to Cell C-1, C-2, and C-3 in Tier C.

14

There was also a proffer offered by the defendants

15 that despite the cooling mechanism currently in place there is

16 the possibility of mold and other problems with that area.

17

Is that correct, Ms. Roper?

18

MS. ROPER: Yes, Your Honor. Yes, Your Honor.

19

THE COURT: All right. What we will do, then, I

20 understand that you have a witness who you would like to

21 testify at this time, is, is that correct?

22

MS. ROPER: Your Honor, we may not need to have him

23 testify in light of the report that was rendered by the Court's

24 expert, which is consistent with our expert. And so for the

25 economy of the Court --

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 6 of 49 6

1

THE COURT: Okay.

2

And Ms., Ms. Roper, would you just confirm on the

3 record that you have received a copy of the expert's report?

4

MS. ROPER: Yes, we have, Your Honor.

5

THE COURT: And that report is dated August 19th and I

6 believe you all were served with that this past weekend,

7 correct?

8

MS. ROPER: Yes, Your Honor. We, we received it

9 yesterday afternoon.

10

THE COURT: Okay.

11

Ms. Montagnes, let me ask you about that, ma'am. Now

12 again, I will state for the record and will at this time enter

13 into the record the report of the expert witness retained by

14 the Court, Mr. Shane M. Hernandez, who is a professional

15 engineer with the M&E Consulting Group in Lafayette, Louisiana.

16

Have you received a copy of the expert, expert's

17 report dated August 19th?

18

MS. MONTAGNES: We did yesterday afternoon.

19

THE COURT: And did you have an opportunity to review

20 the report, ma'am?

21

MS. MONTAGNES: I have, Your Honor.

22

THE COURT: Do you have any objections to the report

23 being entered into evidence at this time? I will call the

24 expert and adduce testimony from him, but again, I want to just

25 hear any preliminary comments or objections you may have.

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 7 of 49

HERNANDEZ - BY THE COURT

7

1

MS. MONTAGNES: No, Your Honor. We have no

2 objections.

3

THE COURT: Okay. All right.

4

Okay. Okay. At this time let's, let's go on and, and

5 call Mr. Hernandez to testify about the contents of his report.

6

Mr. Hernandez, would you please come forward and at

7 this time he -- you -- the expert will be placed under oath.

8

THE COURTROOM DEPUTY: Raise your right hand.

9

SHANE M. HERNANDEZ, COURT'S WITNESS, SWORN

10

THE COURTROOM DEPUTY: State and spell your name for

11 the record.

12

THE WITNESS: Shane M. Hernandez. S-H-A-N-E; middle

13 name is Miguel, M-I-G-U-E-L; and then Hernandez, H-E-R-N-A-N-D-

14 E-Z.

15

EXAMINATION

16 BY THE COURT:

17 Q Now, Mr. Hernandez, would you please so state for the

18 record how was it that you were contacted in connection with

19 this matter and by whom?

20 A Originally contacted by Special Master, Paul Hebert, to

21 view the facility.

22 Q Okay. And did you, in fact, visit the facility at the

23 Louisiana State Prison?

24 A Yes, Your Honor.

25 Q All right. And specifically, did you, did you visit the

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 8 of 49

HERNANDEZ - BY THE COURT

8

1 death row facility there?

2 A Yes, Your Honor.

3 Q Did you have occasion to visit and inspect Tier C of that

4 building?

5 A Yes. We walked through, took measurements, made

6 observations --

7 Q Okay.

8 A And, and you can just very briefly describe the methodology

9 that was used in your inspection of the facility, please.

10 A My methodology?

11 Q Yes.

12

And if it would assist you, you're certainly welcome to

13 have your report with you, if that will assist you in your

14 testimony. But if you think that you can recall

15 sufficiently --

16

MR. HEBERT: We have it right here.

17

THE COURT: Oh, do you have it?

18

THE WITNESS: Okay. I don't need it.

19

Most of the method was just visual observation of the

20 heat remediation plans that the State was currently employing

21 in the Tier C. Basically, I actually used the, Frank

22 Thompson's measurement device where he had like an anemometer

23 and a temperature and humidity gauge. Went through, took

24 temperature readings. With the -- I didn't write down any

25 humidity readings based on just my experience of just going

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 9 of 49

HERNANDEZ - BY THE COURT

9

1 through many different, I guess, environments whether or not

2 low humidity-high humidity. I can pretty much tell that on my

3 own 'cause I didn't -- with the gauges a lot of times the

4 accuracy isn't that great and then a lot of times you have to

5 put it down, step away from the device to get a true humidity

6 reading, stuff like that. But temperature is something that's

7 pretty, you know, you can do with that type of, the accuracy

8 level of that device.

9

Just looked in and around just the system that was

10 being deployed and most of it was just visual.

11 BY THE COURT:

12 Q And now your report indicates that you took temperature

13 readings during your visit, is that correct?

14 A Yes, Your Honor.

15 Q And why don't you describe the manner in which you took the

16 temperature readings and the results of those, those readings.

17 A Sure.

18

Took temperature readings first in the isolated area where

19 the housed plaintiffs were being housed in the Tier C, C-1, 2,

20 3, and 4. Just a space temperature, approximately four feet

21 off the ground with a handheld device. Wanted to kind of see

22 the difference between where the plaintiffs were being housed

23 and the opposite side of the air-strip curtain that they had.

24 So it would be the rear part of Tier C.

25 Q So let me --

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 10 of 49

HERNANDEZ - BY THE COURT

10

1 A So --

2 Q -- let me understand. So you were interested in inspecting

3 the area in which they are currently housed, correct?

4 A Right.

5 Q Also visited the area in which the other prisoners are

6 housed?

7 A Well, the Tier C is empty besides those plaintiffs right

8 now. So basically, there were no other inmates on the other

9 side of the curtain. So you're looking at C block or C, the

10 cell C-5 through, I don't know if it's like 15 or so, cells in

11 that cell =block.

12

The -- it was around, probably, around 78 degrees where the

13 plaintiffs are being housed. About 79.5 degrees on the other

14 side of the curtain.

15

Went also to Tier H, which is on the opposite side of the

16 control pod, and took readings there. Noticed that the

17 readings there were very similar to the readings in Tier C,

18 maybe one or two degrees higher, about 81 degrees. Took a

19 couple of readings down the hall. Not much of a difference,

20 which means what was close to the, the center as opposed to the

21 rear of Tier H.

22

Did notice that even though the temperatures were the same,

23 the humidity levels were very drastic. Tier C was much more

24 comfortable. You could tell that the relative humidity was

25 probably somewhere in the 60 percent range; whereas, the Tier H

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 11 of 49

HERNANDEZ - BY THE COURT

11

1 was very elevated humidity levels.

2

So it was probably, if I had to, to guess, 70, 80, 90

3 percent, something like that, and it kind of almost matched

4 outside, which was a hot and humid day.

5 Q All right.

6

So other than the temperature readings, what other -- and

7 the temperature readings and your visual observations, did you

8 take any other, make any other examinations of any kind?

9 A Took some airflow readings. It does do air flow on that

10 device, but I felt like -- that's kind of a little bit tricky

11 because even -- if you're doing airflow readings, you need to

12 kind of do a statistical kind of analysis across each point.

13 I'm not really a test-and-balance contractor, which kind of

14 goes into that realm of work. They're much better at doing

15 measurements. But you can kind of get a general idea and I

16 think some of the, that information was captured in Frank

17 Thompson's report.

18

So I was able to use some of that. So I kind of knew about

19 some of that flow data from the opening that was in the

20 cellblock door at Tier C.

21 Q Okay.

22

Now let's talk about some of the specifications that, that

23 you noticed. You indicated that you examined the environment

24 in which the plaintiffs are currently housed versus the other

25 tiers at that facility, correct?

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 12 of 49

HERNANDEZ - BY THE COURT

12

1 A Yes, Your Honor.

2 Q And generally, what were your observations with respect to

3 the differences of the two regarding the temperatures and the

4 humidity, which you've already testified about? But is there

5 anything else that you want to add to that?

6 A It was just -- if -- by the -- I guess a layman would

7 probably figure that it would be much hotter in Tier C because

8 the -- I mean, in Tier H. Sorry -- Tier H because the humidity

9 level was so high.

10

So the perceived level of the heat index, if you will, of

11 Tier H was much more elevated than Tier C.

12 Q Now did you inspect the, the devices that were used in the

13 area in which the plaintiffs are now housed?

14 A I look them --- the IcyBreeze units you're talking about?

15 Q Yes.

16 A Yes. I -- basically, I lifted up the, the lids, saw the

17 ice inside. I looked around the unit. There was a little bit

18 of condensation where the, the air was coming out, but not

19 much. There was no condensation or any kind of moisture at the

20 bottom base of the unit on the ground. There was no

21 condensation in any of the steel, the bars for the cellblock.

22 It was pointed maybe about 12 inches away from the bars that

23 goes into the cellblock. I looked for condensation on the

24 books, paperwork that they had. The inmates themselves had a

25 lot of, you know, papers and stuff like that. Looked at the,

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 13 of 49

HERNANDEZ - BY THE COURT

13

1 the sheets, their clothing. Nothing was wetted. There was no

2 moisture that I saw coming from those units.

3

And I did do -- I tried to do a little bit of research

4 online to look at the specifications from the manufacturer's

5 website. I didn't see that much that they kind of promulgate

6 and give out to the public, but they did have some indication

7 that the IcyBreeze unit is a sealed heat exchanger. So the

8 liquid from the ice melting doesn’t come in contact, or it

9 doesn't, able to capture that liquid when it blows in the

10 blower.

11

So it's like the lid itself is an isolation between the air

12 blower and the lid inside it. I checked that in the field and

13 when I went to the visit and it seemed to be the case. Because

14 you wouldn't want that fan to blow melted ice, you know, water

15 into the cell to be a condensation issue. So that seemed to

16 check out.

17 Q To that extent, at least with, with respect to that

18 feature, would you consider that to be a viable way of cooling

19 this? I mean, just with respect to the water vapor or the

20 problems with water vapor. You didn't detect any, correct?

21 A Correct.

22 Q All right.

23

Now let's talk about the issue of mold. It has been

24 suggested that there is at least the potential for mold growth

25 with the current configuration. Is that your understanding?

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 14 of 49

HERNANDEZ - BY THE COURT

14

1 A Yes, Your Honor.

2 Q All right. And now you made, you also attempted to make

3 some assessment of whether there would be a possibility of, of

4 mold growth, correct?

5 A Yes.

6 Q Now as I understand it, the tier is built with what's, I

7 guess, considered the non-organic materials such as steel,

8 concrete, and that sort of thing, correct?

9 A Correct.

10 Q Any problem with mold growth on any of those features of

11 the tier?

12 A It should not be. It would be very, very difficult because

13 it doesn't act as food. It's only organic materials that mold

14 would want to decompose or eat, basically, and grow on, so.

15 Q As I understand from your report, you did detect a possible

16 problem of mold growth under certain circumstances, correct?

17 A Yes, Your Honor.

18 Q Why don't you explain that.

19 A The building is kind of built into two kind of space

20 types, I would call. The central pod area where the guards

21 primarily kind of walk around and the central control center

22 and visitation and the entry is all built as an air

23 conditioned, you know, area. And then you have the tiers, the

24 cellblocks where the inmates are. That area, if you can kind

25 of consider, the, the habitation area is almost like a

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 15 of 49

HERNANDEZ - BY THE COURT

15

1 restroom. It's, it's an exhausted space because they have

2 toilets in their living quarters.

3

So every area in that whole tier block is an exhausted

4 area, which makes it very difficult to provide air conditioning

5 for. So that area was, basically, it was exhausted and had

6 ventilation, which had exhaust fans on the roof. And a lot of

7 this is I'm getting from the drawings as well, which matched

8 kind of the things I saw in the field.

9

And then they had operable louvers that they can open to

10 bring the make-up air through the cellblock and then they also

11 had ceiling diffusers or ductwork that went to a central

12 heating unit.

13

So the cellblocks areas had, basically, heating with a

14 central system, which was only heat. There was no cooling.

15 There was no air conditioning with that and then they had roof-

16 mounted exhaust fans. And then they had circulator fans,

17 circulator fans that were just wall mounted that blow air

18 within the space, but they basically, there's no pressure

19 balance issues because it's just circulating the air, that is,

20 blowing out, it's coming back.

21

Whereas, the exhaust system was sucking out a tremendous

22 amount of air, probably by design. I think most cases, it was

23 over 6,000 cfm of air, which in a lot of cases in Louisiana

24 depends on your humidity and your ambient conditions. You can

25 say that about a 120 cfm is about a ton, if you were to

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 16 of 49

HERNANDEZ - BY THE COURT

16

1 condition that down to neutral levels to introduce into your

2 space. It's just a lot of air conditioning in our environment,

3 in our climate, which it seems like that was not done. That's

4 probably -- reason why they didn't do the air conditioning in

5 the cellblock, because it was just a highly exhausted,

6 ventilated area.

7 Q Now is that attributable to an opening there in the

8 cellblock?

9 A The heat remediation actions that the State took was they

10 had the air curtain, they had the IcyBreeze units, and they had

11 the hole that was in the cellblock door between the control and

12 the, I guess, a corridor that, of the tier. And that opening,

13 since you had a highly negative space in the cellblock, you had

14 air that was being sucked out of the building. So you needed

15 to replace that air.

16

So when you made -- when they made a hole in the door, it's

17 basically sucking all the air conditioned space from the pod

18 area -- the middle -- the center area through the hole in Tier

19 C door and out the exhaust.

20 Q Now your report indicates that if there was a way to close

21 that door, perhaps it would reduce or, perhaps, even eliminate

22 the potential for mold growth, is that right?

23 A Right. And it's important to note that the mold growth, in

24 my opinion, it's not in the cellblock area. It would be in the

25 air conditioned area because that sucking action would cause

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 17 of 49

HERNANDEZ - BY THE COURT

17

1 humid air to go through the exterior walls of the air

2 conditioned area and it'd be kind of behind walls within walls

3 and stuff like that until, really, your mold issues there would

4 be concealed and it's questionable whether or not they would

5 happen or occur. It's just likely that they would occur. I

6 mean, and -- but as far as where the inmates are in Cellblock

7 C, I don't think, in my opinion, that there would be any mold

8 issues there.

9 Q So there'd be no mold issues in Cell C-1, C-2, or C-3 if

10 that, that opening was closed, correct?

11 A Correct. Because then you're going back to the original

12 condition.

13 Q But if you did that, what -- what -- what would be the --

14 would the IcyBreeze unit still operate properly?

15 A The IcyBreeze units would operate. It's just -- the only

16 thing you would lose was that, you know, you're still getting

17 some of that air conditioned air through that hole, which kind

18 of made that space a little bit cooler, which it probably would

19 elevate the space temperature in the isolated area of Tier C.

20 Q Do you have any sense of how high it would elevate the

21 area, the temperatures?

22 A I can't determine that. I mean, it's going to be hard,

23 but, I mean, it would -- we can either -- I don't know. Too

24 hard to quantify, I think.

25 Q And, of course, you, you, you've not run any tests to

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 18 of 49

HERNANDEZ - BY THE COURT

18

1 determine with any degree of certainty what the temperatures

2 would be if that opening were closed, correct?

3 A Correct, Your Honor.

4

We could do a basic calculation. There's more work that

5 probably can be done to model that space and to quantify the

6 heat that's just in that area and try to maybe have enough

7 IcyBreeze units that could kind of address that, you know, that

8 cooling load that's needed, so.

9 Q So -- and that was my next question to you.

10

If there were additional IcyBreeze units there, even with

11 the closure, would that essentially solve the problem?

12 A It, it would. I mean, you would still -- those -- you're

13 still going to have the make-up air for those exhaust fans and

14 maybe one recommendation would be to open up an operable louver

15 that's as far away from the isolated area all the way down the

16 hall to at least let some of that makeup happen to where you're

17 not, kind of, you know, affecting the isolated area, but --

18 Q Of course, the louvers are already installed. It'd simply

19 be a matter of opening --

20 A Yeah.

21 Q -- a window, right?

22 A Right. And it's -- most of the make-up air, or some of it

23 is probably going through those operable windows, anyway.

24 'Cause they're probably not a hundred percent sealed-type

25 louvers, so.

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 19 of 49

HERNANDEZ - BY THE COURT

19

1 Q In, in your opinion can the current temperatures be

2 maintained without the threat of mold if (a) the, the holes or

3 the door opening were closed and (b) additional IcyBreeze units

4 be installed and (3) the, the windows opened on the other end?

5 A Yes, I think so. It's a highly potential -- I mean, it's

6 kind of -- you would, I think, kind of do an experiment to kind

7 of see, I think. But -- and it's a question about how many

8 IcyBreeze units are still kind of, you know, still out there.

9

But I think it's a, it's a viable kind of solution that has

10 a high potential of success.

11 Q You believe that, that would be, again, a high potential

12 for success, in your words, correct?

13 A Yes, Your Honor.

14 Q All right.

15

Anything else that you think that should be considered,

16 along with the additional IcyBreeze units, that is, if the

17 State were to keep these plaintiffs in an area that would be

18 affected by the IcyBreeze units? I guess -- let me rephrase

19 that.

20

Other than the possible addition of additional IcyBreeze

21 units, along with the closure of the door there, can you think

22 of anything that would have to be done to maintain the current

23 temperatures?

24 A Could you refrain, rephrase that?

25 Q Yes. Simply, anything else --

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 20 of 49

HERNANDEZ - BY THE COURT

20

1 A I mean, there are -- I think that there are other

2 alternatives out there that don't have to do with the IcyBreeze

3 units, if that's what you're asking.

4 Q But, but let me just ask. First, with respect to the

5 IcyBreeze units, is that, in your opinion, the most cost

6 effective manner of maintaining the current temperatures and

7 heat and the humidity levels?

8 A I think that when you would seal the door, you would lose

9 some of that -- you, you couldn't maintain the temperature

10 without, you know, really having IcyBreeze units in there and

11 the -- the only thing that's important about the IcyBreeze unit

12 is that you have to keep filling it up with ice. Because the,

13 you know, you, you have a certain amount of, a source of,

14 basically, a heat sync that once it melts you lose that ability

15 to cool that space.

16

So the frequency of the ice changes would really come into

17 play about trying to maintain a temperature. So, I mean, it's,

18 it's doable, but, I mean, there's other alternatives that, you

19 know, you can add air conditioning equipment. You can add, you

20 know, equipment that's just kind of -- I think Frank Thompson

21 had mentioned that there was like 1200 cfm of air possibly that

22 would make the space neutral. Like you could leave the, the

23 hole on the door and add conditioned --

24 Q Mechanical?

25 A -- treated air, mechanical air that's, you know, outside

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 21 of 49

HERNANDEZ - BY THE COURT

21

1 air that's coming in. You would treat it down to a neutral

2 temperature like, say, 70, 72. It's not necessarily like an

3 air conditioning system, but you're just, you're basically

4 providing conditioned make-up air that would kind of balance

5 the system, solve the mold issue in the pod air, and then, you

6 know, you can basically kind of keep the same kind of system

7 where you have the air curtain. And maybe it's just a smaller

8 unit that just kind of does the isolated area.

9 Q Well, let's talk about that, but before we move on to that

10 area let me just make sure I understand that -- that -- is it

11 your opinion that the most, the least costly option would be to

12 continue to use the IcyBreeze units but, perhaps, to add

13 another couple of units if you close that door?

14 A Yes, Your Honor. I think that's a good alternative

15 because, basically, the IcyBreeze unit also -- I, I did a

16 temperature of that discharge, too, and it was around, I think,

17 like 56 degrees coming off. So you can almost make a plume of

18 cool air around the person, even though you're not cooling the

19 isolated unit.

20

So that's one thing that's probably a great benefit to the,

21 the inmates.

22 Q Okay. Short of that, you believe that the installation of

23 some mechanical air units would also be effective?

24 A Yes, effective, but more costly.

25 Q Okay. And how, how costly in your estimation would --

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 22 of 49

HERNANDEZ - BY THE COURT

22

1 would -- 'cause we're not talking about mechanical air for the

2 whole tier, correct?

3 A Well, if, if you wanted to make a range where it was the

4 whole tier, I would guess, or estimate that, you know, because

5 there's, there's 6,000 cfm of air that's just exhausting and,

6 you know, you're looking at maybe like around 50 tons of air,

7 of condition equipment, you know, and you might be looking at

8 $250,000 to do the whole tier. Depending on electrical service

9 upgrades, you might be looking at an additional $50,000 to make

10 sure you have the power for that.

11 Q And is it possible to only, if, if the State were to elect

12 or if ordered to provide mechanical air, is it possible that

13 only a portion of the tier -- and specifically, the tier for

14 these three plaintiffs -- so do you agree that only a portion

15 of the tier -- is it, is it possible, put another way, is it

16 possible to only provide mechanical air for a portion of the

17 tier?

18 A Yes, Your Honor. I've kind of explained. It's just --

19 basically, the, the isolate area, you can, instead of doing the

20 full amount of cfm that's exhausted, just do the 1200 cfm, make

21 sure there's no, make sure it's balanced between the pod and

22 the tier and then that way, you're delivering neutral air,

23 about 1200 cfm of air, and you're looking at a price tag

24 probably around 75,000 to a hundred thousand, depending on

25 electrical service.

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 23 of 49

HERNANDEZ - BY THE COURT/CROSS

23

1

But it's something that's, you know, a little bit, kind of

2 in the middle between the IcyBreeze units and the full tier.

3 Q I understand.

4

Thank you.

5

THE COURT: Mr. Hebert, may I see you, please?

6

(Bench conference off the record between the Court and

7 Mr. Hebert)

8

(End of bench conference)

9

(Open Court)

10 BY THE COURT:

11 Q Okay, Mr., Mr. Hernandez. Let me -- let me --

12

THE COURT: Does -- any, any questions, Ms. Montagnes,

13 for Mr. Hernandez?

14

MS. MONTAGNES: Yes, Your Honor.

15

CROSS-EXAMINATION

16 BY MS. MONTAGNES:

17 Q Mr. Hernandez, just a few questions.

18

Did you read Mr. Thompson's report dated August 4th?

19 A Yes, I did.

20 Q And do you recall that he made a suggestion in that report

21 that's, that making the hole in the door smaller might also fix

22 the problem with the mold?

23 A Yes, I read that.

24 Q And what do you think of that opinion?

25 A I think making the hole smaller at first will just increase

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 24 of 49

HERNANDEZ - CROSS

24

1 the velocity of the air coming through and you're basically not

2 really, like it's going to be almost the same condition. You

3 really don't know how much decreased air that's going to be

4 coming from and the issue is that as -- you're kind of

5 decreasing some of the air 'cause the resistance builds up in,

6 through that opening and the decreased air would have

7 decreased, probably, air conditioning coming through right now.

8

But I just don't think that it's a, actually, a fix for

9 what we're trying to do, I mean, because you're still going to

10 get the negative effect. You're still going to be sucking the

11 air conditioning through. You're still going to have the mold

12 effect that's in the pod.

13

So that's, you know, there's two mold kind of concerns.

14 One that's in the cellblock and one that's in the air

15 conditioned pod area, which I think it doesn't have any effect

16 on guaranteeing that you're going to be eliminating that mold

17 that's in the pod.

18 Q So because I'm not an --

19 A Or the, the potential, potential for mold that's in the

20 pod.

21 Q Okay. And because I'm not an engineer and I just want to

22 make sure that I'm understanding.

23

So if you -- my understanding is that pulling the air from

24 the pod is pulling, is what's going to, essentially, pull the

25 mold into the pod from the outdoors, right? Because there's

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1 extra pressure in the, on the pod?

2 A It's going to have air filtration through the building

3 envelope of the pod area.

4 Q Okay. So I understand that part.

5

So if you decrease the hole, at least according to Frank

6 Thompson, that would, that would decrease the pull on the

7 central pod, no?

8 A It would some. I mean, at first, it's kind of a balancing

9 act. At first, you're just going to increase the velocity of

10 the air that's coming through and then, once you start to build

11 up enough pressure difference, then the air is going to start

12 to decrease, so.

13 BY THE COURT:

14 Q So what's the effect of increasing the velocity?

15 A No. That's, that's it. I mean, I think you're just making

16 the air move faster through the hole instead of stopping the

17 air.

18

So, I mean, you're still going to have some that's going to

19 pull through. I mean, it may be less. It's just -- it's

20 really hard to tell, to quantify.

21 BY MS. MONTAGNES:

22 Q Okay.

23

So it's potential that decreasing the size of the hole

24 would decrease the risk of mold in the central pod area?

25 A Yes.

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1 Q My next question is did you take any outdoor temperatures

2 when you were at the prison?

3 A No.

4 Q Okay.

5

Did you perceive any mold in the pod area at all?

6 A No, I did not.

7 Q Did you perceive any mold in any part of the facility?

8 A No, I did not.

9

Just so that, let you know, I mean, let me explain my

10 answer, is that in the pod the probably potential for mold

11 growth would probably be in concealed spaces behind the wall.

12

So it'd be very difficult to see. And it's important to

13 note that mold is everywhere. So you always have mold. It's

14 more mold growth or excessive levels of mold. So that was not

15 -- I did not observe any kind of mold growth, mold, you know,

16 excessive levels or anything at all in, in the facility.

17 Q Okay.

18

And then I wanted to talk a bit about the IcyBreeze units.

19 So I've seen these units. They're, they're sort of an, like,

20 what I would say is like a regular-size cooler, is that

21 correct?

22 A It looks like an ice chest.

23 Q Yeah. Okay.

24

And it blows out a -- a -- some air through a PVC pipe?

25 A Yes.

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1 Q And so the suggestion is that by adding more of those we

2 could get the ambient heat index below 88 in the three-cell

3 area that you saw, is that right?

4 A Yes.

5 Q So, so, you know, you said more and, and the Judge said a

6 couple more. Is it your understanding that two more IcyBreeze

7 units in that small area would -- would -- would be sufficient?

8 A I have no idea. Without calculations and without doing

9 further analysis, it would be hard to kind of just come up with

10 a number.

11 Q Sure. But -- so just because I, I felt it, too. It's,

12 it's not that much air that comes out of these units, right? I

13 mean, you can feel it, but it's not a blow.

14 A Right. The -- I'm sure that the inmates could feel it

15 because they were, basically, you know, they were, you could

16 tell that they were in line with the units. And so the air

17 would kind of blow across their body with air, so.

18

So if you're like in close proximity, you can feel it. If

19 you're like more than, say, five feet away, I couldn't feel any

20 effect.

21 Q Okay. And the IcyBreeze units are outside the cell, is

22 that right?

23 A Correct. They're in the tier corridor outside the cell.

24 Q And the cells are, are fairly deep, is that --

25 A Yes.

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1 Q And the beds are against the back wall, right?

2 A No. They're on, I think, the side wall.

3 Q Yeah. And then they're, they're flush to the back wall of

4 the cell?

5 A I --

6 Q It's, it's okay. It's in the record.

7 A Right.

8 Q Then, then I don't know if this is your area of expertise,

9 but, but do you have any concerns about the cleanliness of the

10 IcyBreeze units and having water in there and sort of sitting

11 and them not being regularly cleaned?

12 A I tried to find data, like I said previously, on the

13 website. If what they say is true in the marketing, that it's

14 a separate heat exchanger where the ice and the water, I think

15 they circulate through the lid, that the airstreams don't

16 touch, basically.

17

So you can have almost in a sense a -- a more of, a more

18 contaminated side, you know. It's kind of like a contaminated

19 side and a clean side and I think the clean side is where the

20 air blows. And so that's the marketing, kind of what they like

21 to believe, that it was a safe product. Because you didn't

22 have the air that blew across the water that was, you know,

23 from the ice side. So they were separated.

24

Now if that's the case, then if they keep bringing in fresh

25 ice, I don't, you know, if it's -- as long as the ice is in

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1 decent shape, I wouldn't have an issue with it.

2 Q And in the marketing are these imagined to be 24-hour-a-day

3 cooling sources for people?

4 A They didn't really say, I mean, but most of the pictures

5 were areas where it's more like recreation use.

6

So if you were by a pool, you would put one of these things

7 in. I'm sure people don't live 24/7 at a pool. So all the

8 pictures didn't have it to where it was in a place, an

9 application that it was a, you know, a person living there

10 24/7.

11 Q And then my last question is, these would be designed to

12 bring the temperature down, but they wouldn't have an effect on

13 the humidity, correct?

14 A That is correct.

15 Q Okay.

16

THE COURT: Ms. Roper?

17

CROSS-EXAMINATION

18 BY MS. ROPER:

19 Q Hi, Mr. Hernandez. We met the other day.

20

Just to be clear, in your report you mentioned a heat

21 remediation plan that was put in place by the defendants.

22

You're not talking about the heat remediation plan that was

23 submitted in the fall, correct?

24 A I have no idea what the one was in the fall. So I'm

25 just --

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1 Q Did someone give you a written report to review that was

2 entitled Heat Remediation Plan?

3 A (No audible response.)

4 Q No? You need to answer verbally. Okay.

5 A No.

6 Q Just -- and I'm not trying to --

7 A The one in the fall? No.

8 Q Correct. Okay.

9

When you're talking about the heat remediation, you're

10 talking about the hole in the door and IcyBreeze coolers, is

11 that correct?

12 A And the -- yes, and also the air-strip door.

13 Q Right.

14 A That kind of makes an, isolated between Cell 4 and 5.

15 Q Right. You're talking about the current conditions of

16 those --

17 A Yes, ma'am.

18 Q -- three things? Okay. All right.

19

And what is your understanding of Cajun Coolers? Are they

20 -- they're not intended for humid climates, are they?

21 A IcyBreeze units?

22 Q Right.

23 A I believe that they're meant to cool. They -- I think you

24 could use them probably anywhere. I'm not sure what you're

25 actually, the question. Could you rephrase it or --

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1 Q Okay. In your review of the literature on these particular

2 types of units, isn't it true that they're not recommended for

3 humid climates?

4

THE COURT: If you know.

5 BY MS. ROPER:

6 Q If you know.

7 A No. I didn't read any kind of recommendation on the

8 website that said not for use for humidity climates. I would

9 believe that it doesn't control humidity, just temperature,

10 which it can do that in almost any climate.

11 Q And you mentioned that it's very difficult to provide A/C

12 to the, the cells due to their design as an exhausted space?

13 A Yes, I did.

14 Q Okay. And would you --

15

THE COURT: Wait just a moment.

16

MS. MONTAGNES: Your Honor, I'm going to, I'm going to

17 just object as this being beyond the scope. If we're going to

18 now get into the sort of first heat remediation plan and

19 whether or not --

20

THE COURT: Well, he's already testified, Ms. Roper.

21 And he doesn’t know anything about the State's heat remediation

22 plan. He's not --

23

MS. ROPER: No, I'm not asking about that, Your Honor.

24

THE COURT: Okay.

25

MS. ROPER: I'm asking about what he testified to

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1 earlier where he talked about this being a highly ventilated

2 and highly exhausted area and that for that reason it would be

3 difficult to provide air conditioning to those spaces.

4

THE COURT: I don't think that's what he testified

5 about. I think that grossly mischaracterizes his testimony.

6 To the contrary. He's testified, in fact, that you can provide

7 mechanical air. What did I miss?

8

MS. ROPER: Maybe I misunderstood.

9

THE COURT: Well, I think you did.

10

MS. ROPER: I was writing down --

11

THE COURT: Is there, is there an objection?

12

MS. MONTAGNES: I mean, to the extent we're going to

13 get into whether or not it's viable to air condition this

14 space, we would strenuously object. We've had a trial on the

15 merits on this issue. We've had extensive evidentiary

16 hearings. I, I just don't think that we need to be revisiting

17 whether or not mechanical cooling is viable because the State

18 has offered a plan that they thought was viable and we accepted

19 it and the wisdom of the Fifth Circuit being what it was. I

20 just don't want to now try to create a record that somehow air

21 conditioning isn't viable. That's just not -- beyond the

22 scope.

23

THE COURT: And, and I will admit that, I mean, I, I

24 allowed him to testify about that merely because he suggested

25 that there were other means and I wanted to get on the record

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1 what he believed the other means were, which were clearly

2 mechanical air.

3

I will allow a little bit of latitude on this, but

4 we're not going to -- I'm not going to allow a lot of questions

5 on the use of mechanical air. He's testified about what he

6 believes the cost would be to provide limited mechanical air,

7 at least to that portion of the tier. This gentleman was

8 retained only a few days ago, certainly didn't have the kind of

9 opportunity to, I'm sure, do the kind of studies that would

10 otherwise be --

11 BY THE COURT:

12 Q You're not a AC/VAC. I mean, you're, you're a professional

13 engineer. I understand that, correct?

14 A Yes, Your Honor.

15 Q And, and you are familiar with mechanical HVAC systems,

16 right?

17 A Oh, very much so, Your Honor. That's what I do everyday.

18 Q But you were -- at no time were you requested to inspect

19 that area to determine the feasibility of an HVAC system so,

20 you know, all that would be involved in that, correct?

21 A I was not asked to do new alternatives or anything like

22 that, just to look at what was out there, basically.

23 Q Okay.

24

MS. MONTAGNES: Yes, Your Honor. And to the extent we

25 have, you know, "spitball," to quote, I just want to again

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1 emphasize that we've -- this has been the subject of extensive

2 litigation regarding the cost and we would object to any of

3 that being taken beyond just a spitball --

4

THE COURT: I understand. Yes.

5

MS. MONTAGNES: -- that was provided.

6

THE COURT: Right. I understand.

7

MS. MONTAGNES: Thank, thank you, Your Honor.

8 BY MS. ROPER:

9 Q And my question was certainly not meant to go into the heat

10 remediation plan and -- and -- and what you believe that I was

11 trying to get into.

12

I'm just certainly trying to get into the areas that you

13 were talking about and you were asked about alternatives and so

14 forth, which is beyond the scope of the report that we were

15 provided, correct?

16

THE COURT: Well, I can tell you that I won't consider

17 any alternatives that was, that is not here in this report. I

18 can, I can tell you that.

19

MS. ROPER: Okay. Well, that was just a bit

20 concerning to me, Your Honor. So I was trying to make sure

21 that we were not discussing that.

22 BY MS. ROPER:

23 Q And you mentioned something -- you were asked whether

24 additional IcyBreeze coolers could, perhaps, maintain the, the

25 space -- I'm not sure if you were asked -- was it below a

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1 certain temperature? What is your opinion on that?

2 A Are you talking about the temperature that we're trying to

3 maintain?

4 Q The heat -- I'm sorry. The heat index.

5 A I was informed by the Special Master that 88 degrees was

6 basically the heat index. Anything below that, we're trying to

7 maintain that 88-degree benchmark.

8 Q And how many IcyBreeze coolers -- do you have any idea how

9 many that would take per inmate to do that?

10 A I have no idea. I would have to do calculations to

11 calculate the cooling load of the building, kind of take into

12 some other considerations. I mean, there would be, further

13 investigation would be needed --

14 Q Okay.

15 A -- and analysis.

16 Q And in your report you indicated that you had reviewed the

17 report of Mr. Thompson and that you had no issues with it,

18 correct?

19 A Yes, ma'am.

20 Q But today you testified somewhat differently to that as far

21 as the opening in the door, that a smaller opening in the door

22 would not prove to have the same effect that Mr. Thompson

23 indicated it might have?

24 A I don't know if Mr. Thompson had made a statement that it

25 would solve any mold case or mold issues in the -- so I'm, I'm

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1 not sure if, if I did disagree with him. Because I don't think

2 he made any statement that I disagreed with. Basically, he was

3 just trying to minimize the negative pull in the space, but he

4 didn't really say if that would like totally do away with the

5 mold issue.

6 Q Okay. So overall, you, you still maintain that you don't

7 disagree with the report submitted by Mr. Thompson or the

8 information within the report that you reviewed by

9 Mr. Thompson?

10 A Right. I mean, maybe not a hundred percent that I agree

11 with. I just, you know --

12 Q Anything else that you disagree with in the report?

13 A Not that I recall, I mean.

14 Q Did you do any calculations to determine what portion of

15 the, the cooling effect that you observed in Tier C is

16 attributable to the air coming through the door as opposed to

17 the air being emitted by the Icy coolers?

18 A No, I did not.

19 Q When you indicated that, perhaps, the heat index could be

20 brought below the 88-degree level with adding additional

21 IcyBreeze coolers, would that be all that would be required?

22 A If you had enough IcyBreeze units, yes. They're cooling

23 units. So if you matched the cooling units, the cooling need

24 with the cooling capacity of the, of the units, I mean, you can

25 achieve that.

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1 Q Would there need to be any alterations to the ventilation

2 or exhaust?

3 A No, other than, possibly, trying to open up an operable

4 louver kind of at the farthest end, maybe, you know, to kind of

5 make some of the make-up air come from the outside instead of

6 the condition pod.

7 Q So the current ventilation and exhaust wouldn't pull too

8 much air from the cells?

9 A You would just have to overcome the amount of heat

10 that's -- that -- that phenomenon, the pulling of the air, is

11 doing.

12

THE COURT: And -- and --

13 BY MS. ROPER:

14 Q And that would be overcome by the additional IcyBreeze

15 coolers, correct?

16 A Yes.

17 Q Or is there -- or are you alluding that something else

18 would need to be done other than the, the louvered windows,

19 opening of that?

20 A If you add additional IcyBreeze units, I think you can

21 overcome the cooling from the ventilation.

22

I mean, there is a physical constraint about adding. You

23 can't add that many more coolers than the amount of volume

24 that's in the corridor, most likely, you know. I mean, there's

25 got to be some limitation. If that limitation is met, I mean,

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38

1 then maybe it’s not a viable alternative, but I don't

2 personally think it's going to take that many, you know.

3

And there is still the fact that you have to replace the

4 ice, I mean, because that's the, that is the heat sync, you

5 know, source there.

6

So you can't just replace, you know, once in the morning

7 and then expect it to do the job throughout the day, just one

8 time, so.

9 Q And, and in your visual observation of Tier C did you take

10 note of the fact that one of the fairs, one of the fans, in

11 fact, was not on at the time?

12 A No, I did -- no, I did not note, note that, so.

13 Q Did you note anything regarding the fans, the operation of

14 the fans?

15 A You talking about the circulator fans that's on the wall or

16 the exhaust fans that's at the roof?

17 Q The circulating fans. Did you make any notations about

18 that in your observation?

19 A I believe I said that I saw those. That was part of the

20 original building design. So I kind of talked about them a

21 little bit in my report.

22 Q Okay.

23 A So I noted it. But not the one that was, I think, off.

24 Q And a little bit was touched upon about the mold and

25 potential for mold growth in the, the pod area and whether or

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1 not you had observed any mold and you said you did not observe

2 any mold at the time, correct?

3 A That is correct.

4 Q And typically, mold would develop behind the scenes, isn't

5 that correct?

6 A Mold's going to develop where there's a water source. So

7 if you have a roof leak, it's going to develop where any kind

8 of material's wetted.

9

So if it's caused by condensation forming within the wall,

10 like, basically, from vapor drives coming through your building

11 exterior, typically, in that case, that's kind of usually in

12 concealed spaces. If it continues to grow and colonize and

13 spore, then you might see it on surfaces.

14

So there's many different levels of mold growth. I'm just

15 -- I was asked by the Court to say if it's, the heat

16 remediation plans were a sustainable kind of action plan. It's

17 -- I can't guarantee that it's a sustain -- I can't guarantee

18 that there'll be mold growth or not mold growth. I mean, it's

19 kind of -- it's a -- there's so many openings, probably, in the

20 building it's hard to quantify where the vapor drive is coming

21 from. It's just an experience that that's a potential for mold

22 growth, is the vapor drive.

23 BY THE COURT:

24 Q But during your visit you didn't see any evidence of mold?

25 A I did not see any evidence whatsoever of mold.

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1 BY MS. ROPER:

2 Q And, and would the fact there is a, there's a negative

3 pressure in a facility, would that not tend to lead toward a

4 potential for mold in the, the air vents, the ducts?

5 A Not necessarily. I mean, it's, it's really dependent upon

6 each building, the amount of cfm. I mean, it's a pretty

7 specific case to each building.

8

So in one area, you may have no problems. Another area,

9 you may have problems. One building, problem. So it's -- you

10 can't really quantify that or, or guess on that.

11 Q What types of conditions would lead to the growth of mold

12 if a, if an A/C unit is not functioning properly?

13 A If an --

14

THE COURT: We're not talking about an A/C unit here,

15 though.

16

MS. ROPER: In, in the pod area, Your Honor, the, the

17 effect that this particular experiment is having on the, the

18 draw upon the, the unit in the pod area.

19 BY THE COURT:

20 Q Did you have an opportunity to ascertain whether there,

21 there would be an effect in that pod area?

22 A On the air conditioning system?

23 Q Yes.

24 A I mean, the air conditioning system in that case would

25 probably just act as a -- it wouldn't be a problem with the

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1 mold, a direct cause of the mold. It would probably -- if

2 there's a cause, it'd be because you had a vapor drive. Like

3 you have a negative space that's sucking air and it's

4 infiltrating the hot humid air outside through the building of

5 the air conditioned space. And that air conditioned space has

6 more organic material that's food for the mold.

7

The cellblocks were kind of designed more nonorganic or

8 cement blocks and steel bars and stuff like that to where they

9 didn't have as much case, much chance to have mold growth. The

10 mold, probably, might spread because of the HVAC system, the

11 ductwork, if there's like spores. It might spread it out

12 throughout the mold, pod if there's mold that develops, but it

13 wouldn't be the direct cause of the mold.

14 Q And, and speaking of mold spores, mold spores do travel,

15 correct?

16 A Yes.

17 Q So if they were in the pod area and the door is open, is it

18 possible that they could travel into the, the cells?

19 A Yes.

20 Q Okay.

21

Did you look for mold when you were there? I'm not sure

22 what you testified to.

23 A I didn't have any kind of mold meter or anything like that.

24 I'm just looking for visual mold, you know, any kind of like

25 buildup, black. I didn't see any kind of like black spots, any

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1 kind of mold.

2 Q And, and it was your recommendation, is, is it not, that

3 the opening in the, the door to the, the C Tier be closed in

4 order to keep the air conditioned portion of the building

5 prevented from exhibiting any damage from mold?

6 A Yes.

7 Q Can you tell me, when did you provide your report to the

8 Special Master?

9 A I think August 19th, the Friday.

10 Q That Friday?

11 A Uh-huh. (Indicating an affirmative response)

12 Q Thank you.

13

MS. ROPER: That's all.

14

THE COURT: Okay.

15

Anything further, Ms. Montagnes?

16

MS. MONTAGNES: No, Your Honor.

17

THE COURT: Okay.

18

MS. MONTAGNES: No, Your Honor.

19

THE COURT: All right.

20 BY THE COURT:

21 Q So to the extent Mr. Thompson's report raised some concerns

22 about mold, you believe that that can be rectified with the

23 addition, again, of the additional IcyBreeze units, the opening

24 of the door, and the, I guess, the closing of the hole. Is

25 that, is that your testimony?

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43

1 A Yes, Your Honor.

2 Q Okay. Thank you very much, Mr. Hernandez. You're --

3 A Thank you.

4 Q You are excused.

5

THE COURT: All right. Any, any arguments by the

6 plaintiff?

7

Let me give both sides an opportunity to be heard.

8

MS. MONTAGNES: Yes, Your Honor.

9

Back in October of this year, we held a hearing and at

10 that hearing --

11

THE COURT: Back in when?

12

MS. MONTAGNES: October of 2015. I'm apologize.

13

THE COURT: All right.

14

MS. MONTAGNES: We held a hearing and at that hearing

15 we discussed the possibility of opening up the tier doors,

16 which was one of the suggestions that had been offered by the

17 Fifth Circuit. And at that hearing we were presented by the

18 opinion of, of Mr. Thompson that he believed that that might

19 cause mold growth and that potential was dismissed and, and we

20 moved on to the other set of options that the Fifth Circuit had

21 presented us with.

22

And with that knowledge, with the letter in the record

23 -- this is Record Document 251-1 -- the defendants went ahead

24 and created a situation where the plaintiffs are now not being

25 subjected to a constitutional violation three years after

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 44 of 49 44

1 filing a lawsuit asking for that and it's plaintiffs' position

2 that closing up that hole will absolutely -- and I -- and I,

3 you know, I know that Mr. Hernandez is an engineer and he is

4 much more adept at this than I am, but having seen what the

5 IcyBreeze units produce it is, there's no doubt in my mind that

6 the hole in that door is what is causing the reasonable

7 conditions for my clients right now and that if you shut that

8 hole, they will again be subjected three years later to

9 unconstitutional conditions and to the extent that that's

10 what's on the table right now, plaintiffs would just

11 strenuously object. The defendants had this information

12 available to them when they cut that hole in the door and to

13 then allow them to reseal that door and to subject my clients

14 to those conditions again, to me, just goes against every

15 principle of what we've been trying to do here.

16

THE COURT: So what alternative would you offer?

17

MS. MONTAGNES: Your Honor, all I've heard today is

18 that there's a potential. That's all I've heard. And I don't

19 -- the potential that mold may develop in the pod doesn't seem

20 to me to justify putting my clients in unconstitutional

21 conditions again. I simply -- I can't -- I understand that we

22 have to weigh these, these two, we have to weigh interests and

23 that's what we're here to do. And I understand that, you know,

24 it's going to cost a little money or it's going to cause a

25 little discomfort, but currently, my clients for the first time

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 45 of 49 45

1 in three years are in a reasonable condition and I don't think

2 the potential for mold should mean that they are now subjected

3 to conditions which are documented and were reinforced in June

4 with unrefuted testimony that their health is at extreme risk.

5

And so the idea that because mold might develop we're

6 going to put them back in those conditions, to me, I just

7 can't, I just don't think that that's reasonable.

8

THE COURT: Okay.

9

Mr. Hernandez, please come forward. Let me, let me

10 just make sure I understand.

11

Is it, is it your testimony -- I believe your

12 testimony was that the current temperatures and humidity levels

13 could be maintained if the hole was closed, but if there are

14 additional IcyBreeze units brought in and, and utilized in that

15 area, is that correct?

16

MR. HERNANDEZ: Yes. I think the, the temperature

17 would come down. We're talking about the heat index of 88?

18

THE COURT: Correct.

19

MR. HERNANDEZ: So the temperature would come down.

20 The humidity would rise, you know, but you're kind of, kind of

21 in a balancing act between them, I mean. And so you would, you

22 would be attacking or addressing the temperatures to try to get

23 the temperature down to where, you know, your, your perceived

24 temperature wouldn't be as hot.

25

THE COURT: Right.

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 46 of 49 46

1

MR. HERNANDEZ: So, I mean, you wouldn't do any,

2 really, humidity control. You would just try to do --

3

THE COURT: Just temperature, right.

4

MR. HERNANDEZ: Yeah.

5

THE COURT: Very well. Thank you, sir.

6

Well, Ms. Montagnes?

7

MS. MONTAGNES: So, so if that's the case, Your Honor,

8 if the defendants can -- I think before the hole is permanently

9 sealed, if the defendants can temporarily seal it and provide

10 enough IcyBreeze units that, truly, the heat index is brought

11 down, then, then that would be satisfactory for us.

12

THE COURT: Okay.

13

MS. MONTAGNES: But until that happens, I am just

14 extremely hesitant to go backwards where my clients are, once

15 again, going to be subjected to a substantial risk of serious

16 harm.

17

THE COURT: I understand. Thank you.

18

MS. MONTAGNES: Thank you.

19

THE COURT: All right. Ms. Roper?

20

MS. ROPER: Yes, Your Honor.

21

We respectfully stand by our position that the Gates

22 (phonetic) measures that we implemented are sufficient and in

23 engaging in these discussions which we have prefaced every

24 introduction of any information into the record with our

25 objection that they are not to be introduced into the record

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 47 of 49 47

1 under 408, Federal Rule of Civil Procedure 408.

2

THE COURT: We're well beyond that, Ms. Roper.

3

Anything with respect to the testimony of this witness

4 that you'd like me to keep in mind?

5

MS. ROPER: Yes, Your Honor. I'm just trying to

6 address opposing counsel's comments about moving forward and

7 ordering us to do something that was done pursuant to these --

8

THE COURT: Okay, all right.

9

MS. ROPER: -- agreements --

10

THE COURT: All right.

11

MS. ROPER: -- and the agreement between counsel that

12 none of this -- all of this was just temporary and

13 experimental.

14

So I think it's highly inappropriate for opposing

15 counsel to recommend that we be ordered to do something that

16 has been agreed that would not be a part of any remedial

17 measures ever, any evidence to be --

18

THE COURT: Okay.

19

MS. ROPER: -- introduced into the record in this

20 case.

21

THE COURT: Well, does the State intend to implement

22 any other experimental measures?

23

MS. ROPER: At this point, Your Honor, we were waiting

24 on Your Honor's guidance as we didn't want to do anything

25 further --

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 48 of 49 48

1

THE COURT: Okay.

2

MS. ROPER: -- until we heard further from you, Your

3 Honor.

4

THE COURT: All right, very well. Thank you, ma'am.

5

Now, Mr. Guillot, let me ask you, sir, since you're

6 the one that I've, I've taken this issue up with.

7

Do I have the assurances of the State that they will

8 not relocate the plaintiffs until such time as the Court issues

9 an order, or until the summer months, at least the -- the --

10 we're, we're out of the heat and humidity of the summer months?

11

MR. GUILLOT: Yes, Your Honor.

12

THE COURT: All right.

13

MR. GUILLOT: And it's been -- and I've -- we've

14 informed them several times and they've assured us several

15 times.

16

THE COURT: Okay.

17

MR. GUILLOT: So, yes, Your Honor.

18

THE COURT: Okay.

19

THE COURT: All right, very well. Thank you.

20

MR. GUILLOT: Thank you.

21

THE COURT: Can I see you, Mr. Hebert?

22

(Bench conference off the record between the Court and

23 Mr. Hebert)

24

(End of bench conference)

25

(Open Court)

Case 3:13-cv-00368-BAJ-EWD Document 410-8 05/02/17 Page 49 of 49 49

1

THE COURT: All right. Let me thank counsel for both

2 sides. This has certainly been very helpful. I will issue an

3 order forthwith that will set forth conditions. And again, I

4 intend to get that out in pretty short order, okay?

5

Thank you all very much.

6

Court is adjourned.

7

COURT SECURITY OFFICER: All rise. Court is

8 adjourned.

9

(Proceedings concluded at 4:12 p.m.)

10

11

12

13

CERTIFICATE

14

I, court approved transcriber, certify that the

15 foregoing is a correct transcript from the official electronic

16 sound recording of the proceedings in the above-entitled

17 matter.

18 /s/ Janice Russell

August 30, 2016

19 Janice Russell, Transcriber

Date

20

21

22

23

24

25

 
 Case: 17-30052 Document: 00514393571 Page: 1 Date Filed: 03/20/2018 Case 3:13-cv-00368-BAJ-EWD Document 451 03/21/18 Page 1 of 22

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
March 20, 2018

Mr. Michael L. McConnell Middle District of Louisiana, Baton Rouge United States District Court 777 Florida Street Room 139 Baton Rouge, LA 70801
No. 17-30052 Elzie Ball, et al v. James LeBlanc, et al USDC No. 3:13-CV-368

Dear Mr. McConnell,
Enclosed is a copy of the judgment issued as the mandate and a copy of the court's opinion.
Enclosed for the district court and counsel is the approved bill of costs.

Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________ Mary C. Stewart, Deputy Clerk 504-310-7694
cc: Mr. Colin Andrew Clark Mr. Jeffrey K. Cody Ms. Mercedes Hardy Montagnes Ms. Elizabeth Baker Murrill Ms. Mary E. Roper Mr. Nilay U. Vora Mr. Winston Eric White

Case: 17-30052 Document: 00514393516 Page: 1 Date Filed: 03/20/2018 Case 3:13-cv-00368-BAJ-EWD Document 451 03/21/18 Page 2 of 22

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17-30052 ELZIE BALL; NATHANIEL CODE; JAMES MAGEE,

United States Court of Appeals Fifth Circuit
FILED
January 31, 2018
Lyle W. Cayce Clerk

Plaintiffs–Appellees,

versus

JAMES M. LEBLANC, Secretary, Department of Public Safety and Corrections;
DARREL VANNOY, Warden, Louisiana State Penitentiary; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; Warden JAMES CRUZ,

Defendants – Appellants.

Appeal from the United States District Court for the Middle District of Louisiana

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges. JERRY E. SMITH, Circuit Judge:
Elzie Ball, Nathaniel Code, and James Magee are death row inmates in the Louisiana State Penitentiary (“LSP”) and are housed in cells without air conditioning. The three sued in 2013, claiming a violation of the Eighth

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No. 17-30052 Amendment. Their case comes to us for the second time, after a different panel found that an Eighth Amendment violation had occurred and that injunctive relief was appropriate but that the district court had exceeded the bounds of the Prison Litigation Reform Act (“PLRA”) and Gates v. Cook, 376 F.3d 323, 339–40 (5th Cir. 2004), by mandating facility-wide air conditioning and setting a maximum heat index. See Ball v. LeBlanc, 792 F.3d 584, 596, 598–600 (5th Cir. 2015) (“Ball I”). Because the district court did not adhere to the mandate, we reverse and remand.
I. A. The basis of the complaint is that plaintiffs have pre-existing medical conditions that render them vulnerable to heat-related injury. A detailed description of the death-row facility, located in Angola, Louisiana, can be found in Ball I, id. at 589–91. Most relevant here, the cells are without air conditioning, which has resulted in heat indices of over 100 degrees. Moreover, before suing, plaintiffs had only limited access to ice and could take only hot showers. The Ball I panel agreed with the finding of a constitutional violation: “[W]e affirm the district court’s conclusion that housing these prisoners in very hot cells without sufficient access to heat-relief measures, while knowing that each suffers from conditions that render him extremely vulnerable to serious heat-related injury, violates the Eighth Amendment.” Id. at 596.
The Ball I panel also concluded, however, that the initial injunction (the “First Plan”) violated the PLRA. Id. at 598–600. Under the First Plan, the court effectively required the state “to install air conditioning throughout death row housing” by developing “a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit.” Id. at 598 (quoting Ball v. LeBlanc, 988 F. Supp. 2d 639, 698 (M.D. La. 2013)).
2

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No. 17-30052
“The PLRA greatly limits a court’s ability to fashion injunctive relief.” Id.
Courts may order only relief that “extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation.” Id. (quoting 18 U.S.C. § 3626(a)(1)(A)).
Accordingly, the First Plan violated the PLRA, in part1 because air conditioning was “unnecessary to correct the Eighth Amendment violation.” Id. at 599.2 The panel suggested “acceptable remedies short of facility-wide air
conditioning,” such as (1) diverting “cool air from the guards’ pod into the tiers,” (2) allowing access to air conditioned areas during tier time, (3) allowing
“access to cool showers at least once a day,” (4) giving “ample” cold drinking water and ice “at all times,” (5) providing “personal ice containers and individual fans,” and (6) installing “additional ice machines.” Id. The panel told
the district court to “limit its relief to these types of remedies.” Id.
Additionally, the relief required under the First Plan was far broader than that approved of in Gates. Id. at 600. “The Gates court did not mandate
a maximum heat index . . . . It required particular heat measures, including
1 The panel also reasoned that the First Plan violated the PLRA by requiring facilitywide relief, which ran counter to the PLRA’s requirement that relief be limited to the particular plaintiffs. Ball I, 792 F.3d at 599–600; 18 U.S.C. § 3626(a)(1)(A). On remand, the district court manifestly adhered to that part of the mandate, which is not at issue in this appeal.
2 In Ball I, this court closed the door to air conditioning as a permissible remedy here: “[A]ssuming that air conditioning is an acceptable remedy—and it is not,” the panel reasoned that any relief must be limited to the particular plaintiffs in this case. Ball I, 792 F.3d at 600. Plaintiffs posit, however, that Yates v. Collier, 868 F.3d 354, 370–71 & n.8 (5th Cir. 2017), leaves open the possibility of mandated air conditioning. Yates interpreted Ball I as holding “that air-conditioning was not appropriate in that case because other acceptable and lessintrusive remedies had yet to be tried.” Id. at 370. That observation on Ball I has no bearing on the task before us, which is to interpret and enforce the mandate issued by a panel in this very case. Moreover, the only relevant holding in Yate regards class certification, an issue not present here. In any event, Ball I plainly says that air conditioning is “not” “an acceptable remedy” and was “unnecessary to correct the Eighth Amendment violation.” Ball I, 792 F.3d at 599–600.
3

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No. 17-30052 fans, ice water, and showers, ‘if the heat index reaches 90 degrees or above.’” Id. (quoting Gates, 376 F.3d at 336). The panel noted that the First Plan required relief that was far more extensive and expensive than what Gates allowed and that because “Gates upheld an injunction providing narrower relief, and there is no showing that the Constitution mandated more relief for these prisoners for the same prison condition in this case, on remand the court must craft relief more closely aligned with Gates as well as consistent with the PLRA.” Id.
B. On remand, the district court ordered the state to submit a new plan in light of this court’s mandate, whereupon the state submitted its ‘Second Heat Remediation Plan’ or ‘Second Plan.’” That plan provided that plaintiffs would have cold water for their daily, fifteen-minute showers; it gave each plaintiff ice containers that would be regularly replenished from newly purchased ice machines; and it provided each plaintiff with a personal fan. Unsatisfied, plaintiffs moved to modify, urging the court to reinstate its initial plan—i.e., the very plan that Ball I had explicitly rejected.
In connection with simultaneous settlement discussions, the state implemented additional, experimental relief measures, consistent with the stipulation that “any discussions or actions taken would not be admissible as evidence in this case pursuant to . . . Federal Rule of Evidence 408(a)(2).” These exploratory remedies, which the court termed the “Third Plan,” are the basis for the later additional relief mandated by the modified second injunction at issue on this appeal. Moreover, the Special Master informed the parties that the district court had “advised that the implementation of any efforts or measures, on a trial basis, in this case will not be viewed as spoliation or destruction of evidence . . . . [T]hese discussions are confidential and will
4

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No. 17-30052 remain so as long as the parties so request.”
The court then held two hearings. At the first, it heard evidence from Dr. Vassallo, who had testified in the initial trial and substantially reiterated her testimony. Additionally, each of the plaintiffs testified that, even after the implementation of the Second Plan, they experienced the same heat-related symptoms as before. At the second hearing, the Special Master testified about the Third Plan. Although the state objected that such evidence was inadmissible under Federal Rule of Evidence 408, the district court reasoned that it would not require disclosure of “any communications among the parties” but that it had to learn about the changes in plaintiffs’ conditions of confinement, which relate to a constitutional violation. Accordingly, the court overruled the objection and admitted evidence of the Third Plan.
The court issued an injunction in accordance with the Third Plan, reasoning that the Second Plan did not reduce the substantial risk of serious harm because the plaintiffs continued to experience heat-related symptoms even during its implementation. Ball, 223 F. Supp. 3d at 529, 545, 554−57. The court believed that “the only means to reduce the substantial risk of serious harm to Plaintiffs, and thereby remedy the Eighth Amendment violation in this case, is to lower the temperatures and heat indices to which Plaintiffs are exposed.” Id. at 545.
Accordingly, the district court imposed the Third Plan, which contained the same requirements as the Second Plan but also required the state to (1) relocate plaintiffs to another tier, close to the guards’ pod, (2) install an air vent in the guards’ pod to divert cool air to plaintiffs’ cells, (3) set up a plastic curtain around plaintiffs’ cells to trap the cool air, (4) provide each plaintiff with an “IcyBreeze” unit, which is essentially an ice chest that blows cold air, and (5) regularly replenish the IcyBreeze units with ice. Id. The injunction
5

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No. 17-30052 would take effect only when the heat index exceeds 88 degrees. Moreover, the court provided that “[i]n the event that mold growth proliferates in the guards’ pod” caused by the Third Plan, the state is enjoined “to seal the air vent and provide a sufficient number of additional IcyBreeze units to each plaintiff in order to maintain the heat index” to “below 88 degrees Fahrenheit.” Id. at 548. The court concluded that those measures would sufficiently lower “the indices to which Plaintiffs are exposed” to “below the 88-degree benchmark.” Id.
The state appealed, contending that the district court had violated the Ball I mandate by (1) ordering a maximum heat index and (2) requiring air conditioning in the form of IcyBreeze machines. The state also maintains that the court violated Federal Rule of Evidence 408 by introducing evidence of the Third Plan.
II. “We review de novo a district court’s application of [a] remand order, including whether the law-of-the-case doctrine or mandate rule forecloses the district court’s actions on remand.” United States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012) (citation omitted). In their briefs and at oral argument, plaintiffs insist that we should review the modified injunction for abuse of discretion. Although modifications of injunctions are typically reviewed for abuse of discretion, see Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 190 (5th Cir. 2008), the issue here is whether that modification was barred by Ball I’s mandate.3 Accordingly,
3 Plaintiffs rightly point out that injunctions must “remain open to appropriate modification.” See Brown v. Plata, 563 U.S. 493, 542–45 (2011). But that does not give district courts carte blanche to ignore a mandate. Though the injunction remains open to change, any modifications must be made within the confines of our circuit’s decisions, subject to the few recognized exceptions to the mandate rule. Cf. League of United Latin Am. Citizens v. City of Boerne, 675 F.3d 433, 437–39 (5th Cir. 2012) (holding that, in deciding whether to modify a consent decree, a district court could not ignore instructions regarding the proper procedures to follow; Baum, 513 F.3d at 187 (indicating that injunctions may not be modified in violation of the mandate rule).
6

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No. 17-30052 we review de novo whether the modified injunction violates the mandate rule or the law-of-the-case doctrine.4
“Under the law-of-the-case doctrine, an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.” United States v. Carales–Villalta, 617 F.3d 342, 344 (5th Cir. 2010) (internal citation omitted). “The mandate rule is but a corollary to the law of the case doctrine.” United States v. McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006). Both give way to three exceptions: “(1) [T]he evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; (3) the earlier decision is clearly erroneous and would work a manifest injustice.” Id.; Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 702 (5th Cir. 2010). On remand, a district court must implement “both the letter and the spirit” of the panel’s mandate. McCrimmon, 443 F.3d at 459.
A. Plaintiffs suggest that the new-evidence exception applies to override the mandate rule. We disagree. The only new evidence plaintiffs can point to is the Third Plan itself and allegedly new scientific testimony. But all of the relevant testimony—especially Vassallo’s critical testimony—was materially
Because, as we note below, one of those exceptions is for new and substantially different evidence, the mandate rule essentially dovetails with the issuing court’s authority to modify an injunction in light of changed circumstances. See Sys. Fed’n No. 91, Ry. Emp’t Dep’t, AFL-CIO v. Wright, 364 U.S. 642, 647 (1961) (stating that a court “cannot be required to disregard significant changes in law or facts” and that “[a] balance must therefore be struck between the policies of res judicata and the right of the court to apply modified measures to changed circumstances’). The crucial consideration, therefore, is whether circumstances not present at the time of Ball I justify a maximum heat index. As we demonstrateinfra, they do not.
4 Cf. League of United Latin Am. Citizens, 675 F.3d at 437–39; Nat’l Airlines, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers, 430 F.2d 957, 960 (5th Cir. 1970).
7

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No. 17-30052 unchanged.5 And the evidence of the Third Plan itself could be relevant only in that it proved the feasibility of the Third Plan. Because the state’s claims center on the propriety of a maximum heat index and the potential for air conditioning, such evidence would be irrelevant to our application of the mandate rule.6 Accordingly, no exception to that rule applies.
B. The state’s primary claim is that the district court violated the mandate rule by effectively requiring a maximum heat index. According to the state, Ball I foreclosed relitigating whether the Constitution required setting a maximum heat index. And, the state contends, the district court misapplied Ball I by finding that a maximum heat index was necessary to remedy the constitutional violation. Cf. Nat’l Airlines, 430 F.2d at 960. Plaintiffs reply only that the specific measures required by the district court were blessed in Ball I.
We agree with the state. Ball I plainly foreclosed any consideration of a maximum heat index. As that panel explained, “The Gates court did not mandate a maximum heat index,” and the district court had to “limit its relief” to the kinds of measures found in Gates. Ball I, 792 F.3d at 599–600.7 Although well-intentioned, the district court, to the contrary, both considered and accepted the need for a maximum heat index.8
5 Cf. Gene & Gene, 624 F.3d at 704–05 (requiring evidence that was new and “substantially different” from that presented to the panel).
6 Cf. Nat’l Airlines, 430 F.2d at 960 (explaining that new evidence cannot result in reopening issues squarely foreclosed by a previous appeal).
7 Indeed, Judge Reavley dissented on the basis of allowing a maximum heat index. Ball I, 792 F.3d at 600 (Reavley, J., dissenting) (stating “I would affirm the injunction which in principal only orders the heat index in the Angola death row tiers to be maintained below 88 degrees”).
8 For instance, the court repeatedly found that the only way to correct the Eighth Amendment violation would be to “lower the temperature and heat indices to which Plaintiffs are exposed.” Ball, 223 F. Supp. 3d at 537.
8

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No. 17-30052
Relying on a maximum heat index of 88 degrees, the court concluded that
the Second Plan was inadequate because it exposed plaintiffs to heat indices above that. And based on that same maximum, the court adopted the Third Plan because it would lower the heat indices to below 88 degrees.9 Moreover,
the court gave a provisional order regarding the possibility of mold growth—in that event, the state would have to provide enough IcyBreeze units to keep the heat index below 88 degrees. Therefore, the court violated the mandate by
incorporating a maximum heat index into its order. Based on that violation, we reverse and remand the injunction.
On remand, the district court must re-evaluate the necessity of the Third
Plan even without a maximum heat index. It may well be that parts of the Third Plan are still necessary to redress the constitutional violation: i.e., “housing these prisoners in very hot cells without sufficient access to heat-relief measures.” Id. at 596 (emphasis added).10 But the court cannot decree whether any given plan is necessary to lower the heat index to below a maximum, nor
can it require the state to provide an undetermined number of IcyBreeze units or other measures to keep the heat index below a certain point.
9 Specifically, the court reasoned that the Second Plan would not lower the heat index but that the Third Plan would lower it to “below the 88-degree benchmark.” Id. at 545.
10 “[T]he Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” Ball I, 792 F.3d at 592 (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)) (internal quotation marks omitted). That involves some balancing: “In Eighth Amendment cases, plaintiffs can only obtain a remedy that reduces the risk of harm to a socially acceptable level. Some risk is permissible and perhaps unavoidable.” Id. at 599.
In accord with this reasoning, our precedent generally has eschewed setting maximum temperatures for prisons. See, e.g., Hinojosa v. Livingston, 807 F.3d 657, 670 (5th Cir. 2015) (explaining the Eighth Amendment right “not to be subjected to extreme temperatures without adequate remedial measures” and noting that “the provision of fans, ice water, and daily showers can suffice”); Valigura v. Mendoza, 265 F. App’x 232, 235 (5th Cir. 2008) (per curiam) (noting that “temperatures consistently in the nineties without remedial measures, such as fans, ice water, and showers, sufficiently increase the probability of death and serious illness so as to violate the Eighth Amendment”); Gates, 376 F.3d at 339–40 (approving of fans, ice water, and daily showers when the heat index is above 90 degrees).
9

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No. 17-30052 The district court must ensure that any relief “is narrowly 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.” Id. at 598 (quoting 18 U.S.C. § 3626(a)(1)(A)). And although the court is not limited to the specific relief approved of by Gates, it may not order measures that are more extensive or intrusive than was the relief in Gates. See id.
C. It will help the district court and the parties for us to examine whether some of the specific measures required by the Third Plan exceed the Ball I mandate. The state suggests that the IcyBreeze machines might be construed as air conditioning—which Ball I, id. at 599, expressly forbade. The state posits that IcyBreeze machines are functionally much like air conditioning in that they produce cold air.
We disagree. As the district court rightly explained, the IcyBreeze units are basically ice chests with fans attached. The chest blows out cool air but does not emit water vapor. In short, they are similar to evaporative coolers. And Ball I specifically approved of remedial measures such as ice chests and fans. Id. More importantly, IcyBreeze machines are compact and inexpensive, each costing just over five hundred dollars.11 They therefore fit comfortably within Ball I’s admonition that any relief must not be unduly intrusive and must take into account “any adverse impact on public safety or the operation of a criminal justice system.” Id. at 598−99 (quoting 18 U.S.C. § 3626(a)(1)(A)).
The rest of the injunction does not exceed the Ball I mandate. For
11 The district court also found that the overall cost of the Third Plan was less than $2,000. Compared to the approximately $100,000 that would be required to air-condition Plaintiffs’ portion of Tier C, the Third Plan is sufficiently inexpensive to satisfy our concerns relating to the PLRA.
10

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No. 17-30052 example, the Ball I court specifically approved of requiring ice, cold showers, and fans. Id. at 599. And it allowed diverting cool air from the guards’ pod— provided, of course, that “such relief is narrowly 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.” Id. at 598 (quoting 18 U.S.C. § 3626(a)(1)(A)). Moreover, Ball I approved the use of a temperature trigger. Id. at 600 (explaining that Gates “required particular heat measures . . . if the heat index reaches 90 degrees or above”) (internal quotations omitted).
Indeed, a temperature trigger is necessary to ensure that the injunction is inapplicable “during months when there is no heat risk to the Plaintiffs.” Id. It is by effectively requiring a temperature ceiling that the district court went astray. Accordingly, despite that we reverse based on the erroneous adoption of a maximum heat index, we leave open the possibility that, on remand, the court may require IcyBreeze units or temperature triggers.
III. The state posits that the district court admitted evidence of the Third Plan in violation of Federal Rule of Evidence 408.12 Evidentiary rulings are reviewed for abuse of discretion. Id. at 591 (citing Battle ex rel. Battle v. Mem’l Hosp. at Gulfport, 228 F.3d 544, 550 (5th Cir. 2000)). Moreover, “[e]ven if the court abused its discretion, this court will presume the error is harmless.” Id.
12 Although the state also claims that the district court violated Federal Rule of Evidence 407, that contention is undermined by Rule 407’s exceptions for feasibility and impeachment evidence. See FED. R. EVID. 407 (noting that “the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving . . . the feasibility of precautionary measures”). On remand, the state suggested that at least some measures in the Third Plan were infeasible. Accordingly, the district court could permit introduction of such evidence to impeach that statement and demonstrate feasibility. See, e.g., Dixon v. Int’l Harvester Co., 754 F.2d 573, 583–84 (5th Cir. 1985); Muzyka v. Remington Arms Co., 774 F.2d 1309, 1310–13 (5th Cir. 1985).
11

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No. 17-30052 (citation omitted). “The party asserting the error has the burden of proving that the error was prejudicial.” Id. (citation omitted). The state asserts that the court violated Rule 408 because the Third Plan was regarding conduct during compromise negotiations and was a subsequent remedial measure.
Rule 408 precludes admitting any “conduct or . . . statement made during compromise negotiations about the claim” “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.” FED. R. EVID. 408(a)(2). Moreover, the parties stipulated that “any discussions or actions taken [with regard to the Third Plan] would not be admissible as evidence in this case pursuant to . . . Federal Rule of Evidence 408(a)(2).” The district judge even communicated, through the Special Master, that “the implementation of any efforts or measures, on a trial basis,” would not be “viewed as spoliation or destruction of evidence” and that the discussions would remain confidential so long as the parties so requested. Accordingly, the Third Plan and any accompanying discussions were “conduct” and “statement[s] made during compromise negotiations.” FED. R. EVID. 408(a)(2).
Yet Rule 408 contains a broad exception: “The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” FED. R. EVID. 408(b). Here, the other purpose relates to the court’s ongoing supervisory power over its injunction. See Plata, 563 U.S. at 542–45. The district court may have been concerned about how the Third Plan would affect the prisoners and their constitutional rights; the court also could have wanted to know whether the Third Plan was more efficient than the Second Plan.13
13 See Plata, 563 U.S. at 542 (stating that “[a] court that invokes equity’s power to remedy a constitutional violation by an injunction . . . has the continuing duty and responsibility to assess the efficacy and consequences of its order”).
12

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No. 17-30052 Moreover, “Rule 408 should not exclude more than required to effectuate its goals, which, after all, run counter to the overarching policy favoring admission of all relevant evidence.” Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 299 (5th Cir. 2010). Courts must ensure that Rule 408 remains “tethered to the rationales underlying the rule.” Id. at 298. Those rationales— the irrelevancy of such evidence and the public policy in favor of compromise— are inapplicable here.14 The evidence was relevant and probative. And the public policy in favor of compromise could be satisfied by excluding any negotiations15—which would have formed the basis for the state to move to modify the injunction or enter a consent decree—but still admitting conduct affecting the prisoners’ constitutional rights (a manifest public policy concern, see Plata, 563 U.S. at 510–11, 542–43). Accordingly, the district court did not abuse its discretion by admitting evidence of the Third Plan itself.16
Because the district court erroneously addressed the propriety of a maximum heat index, found that it was necessary, and issued a modified injunction that in certain instances incorporated it, the order imposing the modified injunction is REVERSED and REMANDED. We are confident that, on remand, the district court will conscientiously proceed in a manner that is consistent with this opinion and Ball I.
14 See FED. R. EVID. 408 advisory committee’s note to 1972 proposed rule; Lyondell, 608 F.3d at 299; Kennon v. Slipstreamer, Inc., 794 F.2d 1067, 1069 (5th Cir. 1986).
15 Indeed, the district court did not admit any evidence of the parties’ statements or negotiations.
16 The parties would benefit from clearer notice of what is and is not admissible. For instance, the district court could have communicated, prospectively, that any actions would be admissible but that statements made during negotiations would not be admissible.
13

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No. 17-30052
STEPHEN A. HIGGINSON, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority opinion that the injunction should be vacated to the extent it orders the state to maintain the heat index below 88 degrees. However, because, as the majority opinion recognizes, “the rest of the injunction does not exceed the Ball I mandate,” I would affirm it. The relief measures ordered, including IcyBreeze units and diverted cool air, are consistent with the less-intrusive remedies suggested in Ball I and extend no further than necessary to correct plaintiffs’ constitutional injury.
I write briefly to explain my view of the role of the mandate rule in this case. In its application of the mandate rule, the majority opinion reverses the district court’s order despite concluding that most of the relief ordered “does not exceed the Ball I mandate.” It reasons that the district court erred by “[r]elying on a maximum heat index”—even though the injunction does not generally mandate one—because “Ball I plainly foreclosed any consideration of a maximum heat index.”
But in Ball I, our court was clear that “[t]he district court did not abuse its discretion by admitting evidence of or relying on the heat index.” Ball v. LeBlanc (Ball I), 792 F.3d 584, 591 (5th Cir. 2015) (emphasis added). And for good reason. The heat index is the unit of measure consistently used in the medical and scientific literature to measure and identify the risk of heatrelated illness. See id.; Ball v. LeBlanc, 223 F. Supp. 3d 529, 537 (M.D. La. 2016). To forbid the district court from considering a maximum safe heat index is to require that court to remedy the constitutional violation that we have found exists, see Ball I, 792 F.3d at 596, without considering its cause. The record evidence, credited by the district court and not substantively challenged
14

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No. 17-30052
on appeal, demonstrates that these medically compromised plaintiffs face a
risk of serious harm when they are exposed to heat indices above 88 degrees.
See Ball, 223 F. Supp. 3d at 536–37. That factual finding must be considered
when the district court assesses whether any heat-remediation plan is sufficient to remedy plaintiffs’ Eighth Amendment injury.1 See Graves v.
Arpaio, 623 F.3d 1043, 1049–50 (9th Cir. 2010) (affirming injunction requiring
sheriff to house pretrial detainees taking psychotropic medications in
temperatures that do not exceed 85 degrees based on finding that exposure to
higher temperatures presents an unreasonable risk of harm).
Of course, if the district court truly did conclude that the Second Plan
was inadequate simply because it failed to maintain a heat index below 88
degrees, that might in practice be the same as mandating a maximum heat
index and thus violate our court’s Ball I mandate (absent relevant new
evidence). See United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)
(stating that mandate rule requires lower court to implement “both the letter
and the spirit of the appellate court’s mandate” (quoting United States v.
Becerra, 155 F.3d 740, 753 (5th Cir. 1998))). But the district court concluded
that the Second Plan was inadequate because of plaintiffs’ testimony that they
1 This is not to say that a constitutionally sufficient heat-remediation plan must maintain a heat index below 88 degrees. The district court found that the risk of serious harm due to heat “significantly increases when an individual is exposed to heat indices of 88 degrees or greater.” Ball, 223 F. Supp. at 537. But the Eighth Amendment does not protect against any and all risk of harm; rather, it protects against “extreme” conditions, Hudson v. McMillian, 503 U.S. 1, 9 (1992), that present an “unreasonable risk” of harm, Helling v. McKinney, 509 U.S. 25, 35 (1993). Determining whether “conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused.” Id. at 36. Determining the relevant level of risk “also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. In other words, that there is some risk of harm when the heat index exceeds 88 degrees does not necessarily mean that the Eighth Amendment requires a heat index below that number.
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No. 17-30052
“continued to experience heat-related symptoms during the implementation of Defendants’ Second Plan” and expert testimony that cool showers, ice, and fans, without more, did not eliminate the substantial risk of serious harm that these plaintiffs face from extreme heat. Ball, 223 F. Supp. 3d at 536–37, 544– 45. To be sure, the district court further concluded, based on the testimony of plaintiffs’ expert, that “[t]he only means to reduce the substantial risk of serious harm to Plaintiffs, and thereby remedy the Eighth Amendment violation in this case, is to lower the temperatures and heat indices to which Plaintiffs are exposed.” Id. at 545. But, in a facility where the heat index frequently exceeds 100 degrees and has risen as high as 110.3 degrees, id. at 531–32, requiring the state to lower the heat indices to which these medically compromised plaintiffs are exposed is not the same as mandating that the heat index remain below 88 degrees. It is only the latter that (absent relevant new evidence) Ball I forbids.
Contrary to the majority opinion’s assertion, Ball I did not foreclose relitigating on remand whether a maximum heat index, or any other form of relief, could be necessary to remedy these plaintiffs’ constitutional injury. By explicitly noting that “Gates upheld an injunction providing narrower relief” and that there was “no showing that the Constitution mandated more relief for these prisoners for the same prison condition in this case,” 792 F.3d at 600, Ball I contemplated the possibility that new evidence could require other— possibly broader—relief.2 That was for good reason. Injunctions must be open
2 The majority opinion states that Ball I “closed the door to air conditioning as a permissible remedy here.” I agree, but only because plaintiffs did not produce any substantively new evidence demonstrating that air conditioning—in the sense of mechanical cooling—is necessary to remedy their constitutional injuries. However, I disagree to the extent that the majority opinion suggests that Ball I closed the door to air conditioning regardless of any new evidence presented. I read Ball I to narrowly say that air conditioning was not a permissible remedy absent evidence that the more modest measures approved of
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No. 17-30052
to modification in light of new facts or changed circumstances. See Brown v. Plata, 563 U.S. 493, 542–43 (2011) (“A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. . . . [A] court must remain open to a showing . . . that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protection.”). No mandate can change that. See Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 190 (5th Cir. 2008) (stating, in context of a law-of-the-case challenge, that “[m]odification of an injunction is appropriate when the legal or factual circumstances justifying the injunction have changed” (quoting ICEE Distribs., Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 850 (5th Cir. 2006))); Amado v. Microsoft Corp., 517 F.3d 1353, 1360 (Fed. Cir. 2006) (stating that the mandate rule “does not preclude the district court from modifying, or dissolving, the injunction if it determines that it is no longer equitable”); Matthews, 312 F.3d at 657 (stating that the law of the case doctrine, which includes the mandate rule, “merely expresses the practice of courts generally to refuse to reopen what has been decided, [it is] not a limit to their power” (quoting Messinger v. Anderson, 225 U.S. 436, 444 (1912))).
While it is true, as the majority opinion notes, that the new-evidence exception to the mandate rule is inapplicable to issues squarely foreclosed by
in Gates were insufficient for these plaintiffs. In Yates v. Collier, 868 F.3d 354 (2017), two of our colleagues from the Ball I panel confirmed that “Ball [I] 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 an impermissible remedy.” Id. at 370. Yates is a clarification of, and consistent with, Ball I. See 792 F.3d at 600 (noting absence of evidence that plaintiffs in this case require more extensive relief than plaintiffs in Gates). Furthermore, as the majority opinion recognizes, some form of cooled air—be it from an IcyBreeze unit or diverted cool, i.e., air-conditioned, air—can be a permissible remedy.
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a previous appeal, whether a different remedy could be necessary under unaddressed new facts is not an issue that can be squarely foreclosed. Ball I held only that the evidence then in the record was insufficient to establish the necessity of facility-wide air conditioning and/or a maximum heat index of 88 degrees. To suggest, as I think the majority opinion does, that Ball I’s recordspecific holding forecloses future litigation of the necessity of those remedies is to imply that the mandate rule restricts a district court’s authority, and indeed duty, to modify an injunction in light of changed circumstances. But that is contrary to established law. See, e.g., Baum, 513 F.3d at 190.
The static quality that I fear the majority’s opinion may inject into our Eighth Amendment jurisprudence is also inconsistent with the nature of Eighth Amendment rights. Gates does not set a ceiling for permissible heatrelief measures in prisons. “No static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Whether conditions of confinement amount to an Eighth Amendment violation necessarily depends on the context-specific “totality of the circumstances.” Id. at 362-63. Courts must be free to consider those circumstances, as they change, and in light of evolving standards of decency, when determining what relief the Eighth Amendment requires.
Because there was no new evidence submitted relevant to the necessity of an 88 degree maximum heat index, I would vacate just that single provision of the injunction mandating such a maximum heat index. The rest of the injunction, ordering remedies previously approved of by us, is consistent with Ball I and the PLRA, particularly given the evidence presented that the Gates
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remedies alone were insufficient to remedy plaintiffs’ constitutional injuries. I would therefore affirm it.
19

Case: 17-30052 Document: 00514393517 Page: 1 Date Filed: 03/20/2018 Case 3:13-cv-00368-BAJ-EWD Document 451 03/21/18 Page 21 of 22

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 17-30052 _______________________

United States Court of Appeals Fifth Circuit
FILED
January 31, 2018

D.C. Docket No. 3:13-CV-368

Lyle W. Cayce Clerk

ELZIE BALL; NATHANIEL CODE; JAMES MAGEE,
Plaintiffs - Appellees v.
JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; Warden JAMES CRUZ,
Defendants - Appellants
Appeal from the United States District Court for the Middle District of Louisiana
Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
J U D G M E N T
This cause was considered on the record on appeal and was argued by counsel.
It is ordered and adjudged that the judgment of the District Court is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.
IT IS FURTHER ORDERED that plaintiffs-appellees pay to defendantsappellants the costs on appeal to be taxed by the Clerk of this Court.

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STEPHEN A. HIGGINSON, Circuit Judge, concurring in part and dissenting in part.
Certified as a true copy and issued as the mandate on Mar 20, 2018 Attest: Clerk, U.S. Court of Appeals, Fifth Circuit

 
 Case: 17-30052 Document: 00514330178 Page: 1 Date Filed: 01/31/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17-30052 ELZIE BALL; NATHANIEL CODE; JAMES MAGEE,

United States Court of Appeals Fifth Circuit
FILED
January 31, 2018
Lyle W. Cayce Clerk

Plaintiffs–Appellees,

versus

JAMES M. LEBLANC, Secretary, Department of Public Safety and Corrections;
DARREL VANNOY, Warden, Louisiana State Penitentiary; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; Warden JAMES CRUZ,

Defendants – Appellants.

Appeal from the United States District Court for the Middle District of Louisiana

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges. JERRY E. SMITH, Circuit Judge:
Elzie Ball, Nathaniel Code, and James Magee are death row inmates in the Louisiana State Penitentiary (“LSP”) and are housed in cells without air conditioning. The three sued in 2013, claiming a violation of the Eighth

Case: 17-30052 Document: 00514330178 Page: 2 Date Filed: 01/31/2018
No. 17-30052 Amendment. Their case comes to us for the second time, after a different panel found that an Eighth Amendment violation had occurred and that injunctive relief was appropriate but that the district court had exceeded the bounds of the Prison Litigation Reform Act (“PLRA”) and Gates v. Cook, 376 F.3d 323, 339–40 (5th Cir. 2004), by mandating facility-wide air conditioning and setting a maximum heat index. See Ball v. LeBlanc, 792 F.3d 584, 596, 598–600 (5th Cir. 2015) (“Ball I”). Because the district court did not adhere to the mandate, we reverse and remand.
I. A. The basis of the complaint is that plaintiffs have pre-existing medical conditions that render them vulnerable to heat-related injury. A detailed description of the death-row facility, located in Angola, Louisiana, can be found in Ball I, id. at 589–91. Most relevant here, the cells are without air conditioning, which has resulted in heat indices of over 100 degrees. Moreover, before suing, plaintiffs had only limited access to ice and could take only hot showers. The Ball I panel agreed with the finding of a constitutional violation: “[W]e affirm the district court’s conclusion that housing these prisoners in very hot cells without sufficient access to heat-relief measures, while knowing that each suffers from conditions that render him extremely vulnerable to serious heat-related injury, violates the Eighth Amendment.” Id. at 596.
The Ball I panel also concluded, however, that the initial injunction (the “First Plan”) violated the PLRA. Id. at 598–600. Under the First Plan, the court effectively required the state “to install air conditioning throughout death row housing” by developing “a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit.” Id. at 598 (quoting Ball v. LeBlanc, 988 F. Supp. 2d 639, 698 (M.D. La. 2013)).
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No. 17-30052
“The PLRA greatly limits a court’s ability to fashion injunctive relief.” Id. Courts may order only relief that “extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation.” Id. (quoting 18 U.S.C. § 3626(a)(1)(A)).
Accordingly, the First Plan violated the PLRA, in part1 because air conditioning was “unnecessary to correct the Eighth Amendment violation.” Id. at 599.2 The panel suggested “acceptable remedies short of facility-wide air conditioning,” such as (1) diverting “cool air from the guards’ pod into the tiers,” (2) allowing access to air conditioned areas during tier time, (3) allowing “access to cool showers at least once a day,” (4) giving “ample” cold drinking water and ice “at all times,” (5) providing “personal ice containers and individual fans,” and (6) installing “additional ice machines.” Id. The panel told the district court to “limit its relief to these types of remedies.” Id.
Additionally, the relief required under the First Plan was far broader than that approved of in Gates. Id. at 600. “The Gates court did not mandate a maximum heat index . . . . It required particular heat measures, including
1 The panel also reasoned that the First Plan violated the PLRA by requiring facilitywide relief, which ran counter to the PLRA’s requirement that relief be limited to the particular plaintiffs. Ball I, 792 F.3d at 599–600; 18 U.S.C. § 3626(a)(1)(A). On remand, the district court manifestly adhered to that part of the mandate, which is not at issue in this appeal.
2 In Ball I, this court closed the door to air conditioning as a permissible remedy here: “[A]ssuming that air conditioning is an acceptable remedy—and it is not,” the panel reasoned that any relief must be limited to the particular plaintiffs in this case. Ball I, 792 F.3d at 600. Plaintiffs posit, however, that Yates v. Collier, 868 F.3d 354, 370–71 & n.8 (5th Cir. 2017), leaves open the possibility of mandated air conditioning. Yates interpreted Ball I as holding “that air-conditioning was not appropriate in that case because other acceptable and lessintrusive remedies had yet to be tried.” Id. at 370. That observation on Ball I has no bearing on the task before us, which is to interpret and enforce the mandate issued by a panel in this very case. Moreover, the only relevant holding in Yate regards class certification, an issue not present here. In any event, Ball I plainly says that air conditioning is “not” “an acceptable remedy” and was “unnecessary to correct the Eighth Amendment violation.” Ball I, 792 F.3d at 599–600.
3

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No. 17-30052 fans, ice water, and showers, ‘if the heat index reaches 90 degrees or above.’” Id. (quoting Gates, 376 F.3d at 336). The panel noted that the First Plan required relief that was far more extensive and expensive than what Gates allowed and that because “Gates upheld an injunction providing narrower relief, and there is no showing that the Constitution mandated more relief for these prisoners for the same prison condition in this case, on remand the court must craft relief more closely aligned with Gates as well as consistent with the PLRA.” Id.
B. On remand, the district court ordered the state to submit a new plan in light of this court’s mandate, whereupon the state submitted its ‘Second Heat Remediation Plan’ or ‘Second Plan.’” That plan provided that plaintiffs would have cold water for their daily, fifteen-minute showers; it gave each plaintiff ice containers that would be regularly replenished from newly purchased ice machines; and it provided each plaintiff with a personal fan. Unsatisfied, plaintiffs moved to modify, urging the court to reinstate its initial plan—i.e., the very plan that Ball I had explicitly rejected.
In connection with simultaneous settlement discussions, the state implemented additional, experimental relief measures, consistent with the stipulation that “any discussions or actions taken would not be admissible as evidence in this case pursuant to . . . Federal Rule of Evidence 408(a)(2).” These exploratory remedies, which the court termed the “Third Plan,” are the basis for the later additional relief mandated by the modified second injunction at issue on this appeal. Moreover, the Special Master informed the parties that the district court had “advised that the implementation of any efforts or measures, on a trial basis, in this case will not be viewed as spoliation or destruction of evidence . . . . [T]hese discussions are confidential and will
4

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No. 17-30052 remain so as long as the parties so request.”
The court then held two hearings. At the first, it heard evidence from Dr. Vassallo, who had testified in the initial trial and substantially reiterated her testimony. Additionally, each of the plaintiffs testified that, even after the implementation of the Second Plan, they experienced the same heat-related symptoms as before. At the second hearing, the Special Master testified about the Third Plan. Although the state objected that such evidence was inadmissible under Federal Rule of Evidence 408, the district court reasoned that it would not require disclosure of “any communications among the parties” but that it had to learn about the changes in plaintiffs’ conditions of confinement, which relate to a constitutional violation. Accordingly, the court overruled the objection and admitted evidence of the Third Plan.
The court issued an injunction in accordance with the Third Plan, reasoning that the Second Plan did not reduce the substantial risk of serious harm because the plaintiffs continued to experience heat-related symptoms even during its implementation. Ball, 223 F. Supp. 3d at 529, 545, 554−57. The court believed that “the only means to reduce the substantial risk of serious harm to Plaintiffs, and thereby remedy the Eighth Amendment violation in this case, is to lower the temperatures and heat indices to which Plaintiffs are exposed.” Id. at 545.
Accordingly, the district court imposed the Third Plan, which contained the same requirements as the Second Plan but also required the state to (1) relocate plaintiffs to another tier, close to the guards’ pod, (2) install an air vent in the guards’ pod to divert cool air to plaintiffs’ cells, (3) set up a plastic curtain around plaintiffs’ cells to trap the cool air, (4) provide each plaintiff with an “IcyBreeze” unit, which is essentially an ice chest that blows cold air, and (5) regularly replenish the IcyBreeze units with ice. Id. The injunction
5

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No. 17-30052 would take effect only when the heat index exceeds 88 degrees. Moreover, the court provided that “[i]n the event that mold growth proliferates in the guards’ pod” caused by the Third Plan, the state is enjoined “to seal the air vent and provide a sufficient number of additional IcyBreeze units to each plaintiff in order to maintain the heat index” to “below 88 degrees Fahrenheit.” Id. at 548. The court concluded that those measures would sufficiently lower “the indices to which Plaintiffs are exposed” to “below the 88-degree benchmark.” Id.
The state appealed, contending that the district court had violated the Ball I mandate by (1) ordering a maximum heat index and (2) requiring air conditioning in the form of IcyBreeze machines. The state also maintains that the court violated Federal Rule of Evidence 408 by introducing evidence of the Third Plan.
II. “We review de novo a district court’s application of [a] remand order, including whether the law-of-the-case doctrine or mandate rule forecloses the district court’s actions on remand.” United States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012) (citation omitted). In their briefs and at oral argument, plaintiffs insist that we should review the modified injunction for abuse of discretion. Although modifications of injunctions are typically reviewed for abuse of discretion, see Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 190 (5th Cir. 2008), the issue here is whether that modification was barred by Ball I’s mandate.3 Accordingly,
3 Plaintiffs rightly point out that injunctions must “remain open to appropriate modification.” See Brown v. Plata, 563 U.S. 493, 542–45 (2011). But that does not give district courts carte blanche to ignore a mandate. Though the injunction remains open to change, any modifications must be made within the confines of our circuit’s decisions, subject to the few recognized exceptions to the mandate rule. Cf. League of United Latin Am. Citizens v. City of Boerne, 675 F.3d 433, 437–39 (5th Cir. 2012) (holding that, in deciding whether to modify a consent decree, a district court could not ignore instructions regarding the proper procedures to follow; Baum, 513 F.3d at 187 (indicating that injunctions may not be modified in violation of the mandate rule).
6

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No. 17-30052 we review de novo whether the modified injunction violates the mandate rule or the law-of-the-case doctrine.4
“Under the law-of-the-case doctrine, an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.” United States v. Carales–Villalta, 617 F.3d 342, 344 (5th Cir. 2010) (internal citation omitted). “The mandate rule is but a corollary to the law of the case doctrine.” United States v. McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006). Both give way to three exceptions: “(1) [T]he evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; (3) the earlier decision is clearly erroneous and would work a manifest injustice.” Id.; Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 702 (5th Cir. 2010). On remand, a district court must implement “both the letter and the spirit” of the panel’s mandate. McCrimmon, 443 F.3d at 459.
A. Plaintiffs suggest that the new-evidence exception applies to override the mandate rule. We disagree. The only new evidence plaintiffs can point to is the Third Plan itself and allegedly new scientific testimony. But all of the relevant testimony—especially Vassallo’s critical testimony—was materially
Because, as we note below, one of those exceptions is for new and substantially different evidence, the mandate rule essentially dovetails with the issuing court’s authority to modify an injunction in light of changed circumstances. See Sys. Fed’n No. 91, Ry. Emp’t Dep’t, AFL-CIO v. Wright, 364 U.S. 642, 647 (1961) (stating that a court “cannot be required to disregard significant changes in law or facts” and that “[a] balance must therefore be struck between the policies of res judicata and the right of the court to apply modified measures to changed circumstances’). The crucial consideration, therefore, is whether circumstances not present at the time of Ball I justify a maximum heat index. As we demonstrateinfra, they do not.
4 Cf. League of United Latin Am. Citizens, 675 F.3d at 437–39; Nat’l Airlines, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers, 430 F.2d 957, 960 (5th Cir. 1970).
7

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No. 17-30052 unchanged.5 And the evidence of the Third Plan itself could be relevant only in that it proved the feasibility of the Third Plan. Because the state’s claims center on the propriety of a maximum heat index and the potential for air conditioning, such evidence would be irrelevant to our application of the mandate rule.6 Accordingly, no exception to that rule applies.
B. The state’s primary claim is that the district court violated the mandate rule by effectively requiring a maximum heat index. According to the state, Ball I foreclosed relitigating whether the Constitution required setting a maximum heat index. And, the state contends, the district court misapplied Ball I by finding that a maximum heat index was necessary to remedy the constitutional violation. Cf. Nat’l Airlines, 430 F.2d at 960. Plaintiffs reply only that the specific measures required by the district court were blessed in Ball I.
We agree with the state. Ball I plainly foreclosed any consideration of a maximum heat index. As that panel explained, “The Gates court did not mandate a maximum heat index,” and the district court had to “limit its relief” to the kinds of measures found in Gates. Ball I, 792 F.3d at 599–600.7 Although well-intentioned, the district court, to the contrary, both considered and accepted the need for a maximum heat index.8
5 Cf. Gene & Gene, 624 F.3d at 704–05 (requiring evidence that was new and “substantially different” from that presented to the panel).
6 Cf. Nat’l Airlines, 430 F.2d at 960 (explaining that new evidence cannot result in reopening issues squarely foreclosed by a previous appeal).
7 Indeed, Judge Reavley dissented on the basis of allowing a maximum heat index. Ball I, 792 F.3d at 600 (Reavley, J., dissenting) (stating “I would affirm the injunction which in principal only orders the heat index in the Angola death row tiers to be maintained below 88 degrees”).
8 For instance, the court repeatedly found that the only way to correct the Eighth Amendment violation would be to “lower the temperature and heat indices to which Plaintiffs are exposed.” Ball, 223 F. Supp. 3d at 537.
8

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No. 17-30052
Relying on a maximum heat index of 88 degrees, the court concluded that the Second Plan was inadequate because it exposed plaintiffs to heat indices above that. And based on that same maximum, the court adopted the Third Plan because it would lower the heat indices to below 88 degrees.9 Moreover, the court gave a provisional order regarding the possibility of mold growth—in that event, the state would have to provide enough IcyBreeze units to keep the heat index below 88 degrees. Therefore, the court violated the mandate by incorporating a maximum heat index into its order. Based on that violation, we reverse and remand the injunction.
On remand, the district court must re-evaluate the necessity of the Third Plan even without a maximum heat index. It may well be that parts of the Third Plan are still necessary to redress the constitutional violation: i.e., “housing these prisoners in very hot cells without sufficient access to heat-relief measures.” Id. at 596 (emphasis added).10 But the court cannot decree whether any given plan is necessary to lower the heat index to below a maximum, nor can it require the state to provide an undetermined number of IcyBreeze units or other measures to keep the heat index below a certain point.
9 Specifically, the court reasoned that the Second Plan would not lower the heat index but that the Third Plan would lower it to “below the 88-degree benchmark.” Id. at 545.
10 “[T]he Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” Ball I, 792 F.3d at 592 (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)) (internal quotation marks omitted). That involves some balancing: “In Eighth Amendment cases, plaintiffs can only obtain a remedy that reduces the risk of harm to a socially acceptable level. Some risk is permissible and perhaps unavoidable.” Id. at 599.
In accord with this reasoning, our precedent generally has eschewed setting maximum temperatures for prisons. See, e.g., Hinojosa v. Livingston, 807 F.3d 657, 670 (5th Cir. 2015) (explaining the Eighth Amendment right “not to be subjected to extreme temperatures without adequate remedial measures” and noting that “the provision of fans, ice water, and daily showers can suffice”); Valigura v. Mendoza, 265 F. App’x 232, 235 (5th Cir. 2008) (per curiam) (noting that “temperatures consistently in the nineties without remedial measures, such as fans, ice water, and showers, sufficiently increase the probability of death and serious illness so as to violate the Eighth Amendment”); Gates, 376 F.3d at 339–40 (approving of fans, ice water, and daily showers when the heat index is above 90 degrees).
9

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No. 17-30052 The district court must ensure that any relief “is narrowly 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.” Id. at 598 (quoting 18 U.S.C. § 3626(a)(1)(A)). And although the court is not limited to the specific relief approved of by Gates, it may not order measures that are more extensive or intrusive than was the relief in Gates. See id.
C. It will help the district court and the parties for us to examine whether some of the specific measures required by the Third Plan exceed the Ball I mandate. The state suggests that the IcyBreeze machines might be construed as air conditioning—which Ball I, id. at 599, expressly forbade. The state posits that IcyBreeze machines are functionally much like air conditioning in that they produce cold air.
We disagree. As the district court rightly explained, the IcyBreeze units are basically ice chests with fans attached. The chest blows out cool air but does not emit water vapor. In short, they are similar to evaporative coolers. And Ball I specifically approved of remedial measures such as ice chests and fans. Id. More importantly, IcyBreeze machines are compact and inexpensive, each costing just over five hundred dollars.11 They therefore fit comfortably within Ball I’s admonition that any relief must not be unduly intrusive and must take into account “any adverse impact on public safety or the operation of a criminal justice system.” Id. at 598−99 (quoting 18 U.S.C. § 3626(a)(1)(A)).
The rest of the injunction does not exceed the Ball I mandate. For
11 The district court also found that the overall cost of the Third Plan was less than $2,000. Compared to the approximately $100,000 that would be required to air-condition Plaintiffs’ portion of Tier C, the Third Plan is sufficiently inexpensive to satisfy our concerns relating to the PLRA.
10

Case: 17-30052 Document: 00514330178 Page: 11 Date Filed: 01/31/2018
No. 17-30052 example, the Ball I court specifically approved of requiring ice, cold showers, and fans. Id. at 599. And it allowed diverting cool air from the guards’ pod— provided, of course, that “such relief is narrowly 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.” Id. at 598 (quoting 18 U.S.C. § 3626(a)(1)(A)). Moreover, Ball I approved the use of a temperature trigger. Id. at 600 (explaining that Gates “required particular heat measures . . . if the heat index reaches 90 degrees or above”) (internal quotations omitted).
Indeed, a temperature trigger is necessary to ensure that the injunction is inapplicable “during months when there is no heat risk to the Plaintiffs.” Id. It is by effectively requiring a temperature ceiling that the district court went astray. Accordingly, despite that we reverse based on the erroneous adoption of a maximum heat index, we leave open the possibility that, on remand, the court may require IcyBreeze units or temperature triggers.
III. The state posits that the district court admitted evidence of the Third Plan in violation of Federal Rule of Evidence 408.12 Evidentiary rulings are reviewed for abuse of discretion. Id. at 591 (citing Battle ex rel. Battle v. Mem’l Hosp. at Gulfport, 228 F.3d 544, 550 (5th Cir. 2000)). Moreover, “[e]ven if the court abused its discretion, this court will presume the error is harmless.” Id.
12 Although the state also claims that the district court violated Federal Rule of Evidence 407, that contention is undermined by Rule 407’s exceptions for feasibility and impeachment evidence. See FED. R. EVID. 407 (noting that “the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving . . . the feasibility of precautionary measures”). On remand, the state suggested that at least some measures in the Third Plan were infeasible. Accordingly, the district court could permit introduction of such evidence to impeach that statement and demonstrate feasibility. See, e.g., Dixon v. Int’l Harvester Co., 754 F.2d 573, 583–84 (5th Cir. 1985); Muzyka v. Remington Arms Co., 774 F.2d 1309, 1310–13 (5th Cir. 1985).
11

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No. 17-30052 (citation omitted). “The party asserting the error has the burden of proving that the error was prejudicial.” Id. (citation omitted). The state asserts that the court violated Rule 408 because the Third Plan was regarding conduct during compromise negotiations and was a subsequent remedial measure.
Rule 408 precludes admitting any “conduct or . . . statement made during compromise negotiations about the claim” “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.” FED. R. EVID. 408(a)(2). Moreover, the parties stipulated that “any discussions or actions taken [with regard to the Third Plan] would not be admissible as evidence in this case pursuant to . . . Federal Rule of Evidence 408(a)(2).” The district judge even communicated, through the Special Master, that “the implementation of any efforts or measures, on a trial basis,” would not be “viewed as spoliation or destruction of evidence” and that the discussions would remain confidential so long as the parties so requested. Accordingly, the Third Plan and any accompanying discussions were “conduct” and “statement[s] made during compromise negotiations.” FED. R. EVID. 408(a)(2).
Yet Rule 408 contains a broad exception: “The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” FED. R. EVID. 408(b). Here, the other purpose relates to the court’s ongoing supervisory power over its injunction. See Plata, 563 U.S. at 542–45. The district court may have been concerned about how the Third Plan would affect the prisoners and their constitutional rights; the court also could have wanted to know whether the Third Plan was more efficient than the Second Plan.13
13 See Plata, 563 U.S. at 542 (stating that “[a] court that invokes equity’s power to remedy a constitutional violation by an injunction . . . has the continuing duty and responsibility to assess the efficacy and consequences of its order”).
12

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No. 17-30052 Moreover, “Rule 408 should not exclude more than required to effectuate its goals, which, after all, run counter to the overarching policy favoring admission of all relevant evidence.” Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 299 (5th Cir. 2010). Courts must ensure that Rule 408 remains “tethered to the rationales underlying the rule.” Id. at 298. Those rationales— the irrelevancy of such evidence and the public policy in favor of compromise— are inapplicable here.14 The evidence was relevant and probative. And the public policy in favor of compromise could be satisfied by excluding any negotiations15—which would have formed the basis for the state to move to modify the injunction or enter a consent decree—but still admitting conduct affecting the prisoners’ constitutional rights (a manifest public policy concern, see Plata, 563 U.S. at 510–11, 542–43). Accordingly, the district court did not abuse its discretion by admitting evidence of the Third Plan itself.16 Because the district court erroneously addressed the propriety of a maximum heat index, found that it was necessary, and issued a modified injunction that in certain instances incorporated it, the order imposing the modified injunction is REVERSED and REMANDED. We are confident that, on remand, the district court will conscientiously proceed in a manner that is consistent with this opinion and Ball I.
14 See FED. R. EVID. 408 advisory committee’s note to 1972 proposed rule; Lyondell, 608 F.3d at 299; Kennon v. Slipstreamer, Inc., 794 F.2d 1067, 1069 (5th Cir. 1986).
15 Indeed, the district court did not admit any evidence of the parties’ statements or negotiations.
16 The parties would benefit from clearer notice of what is and is not admissible. For instance, the district court could have communicated, prospectively, that any actions would be admissible but that statements made during negotiations would not be admissible.
13

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No. 17-30052
STEPHEN A. HIGGINSON, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority opinion that the injunction should be vacated to the extent it orders the state to maintain the heat index below 88 degrees. However, because, as the majority opinion recognizes, “the rest of the injunction does not exceed the Ball I mandate,” I would affirm it. The relief measures ordered, including IcyBreeze units and diverted cool air, are consistent with the less-intrusive remedies suggested in Ball I and extend no further than necessary to correct plaintiffs’ constitutional injury.
I write briefly to explain my view of the role of the mandate rule in this case. In its application of the mandate rule, the majority opinion reverses the district court’s order despite concluding that most of the relief ordered “does not exceed the Ball I mandate.” It reasons that the district court erred by “[r]elying on a maximum heat index”—even though the injunction does not generally mandate one—because “Ball I plainly foreclosed any consideration of a maximum heat index.”
But in Ball I, our court was clear that “[t]he district court did not abuse its discretion by admitting evidence of or relying on the heat index.” Ball v. LeBlanc (Ball I), 792 F.3d 584, 591 (5th Cir. 2015) (emphasis added). And for good reason. The heat index is the unit of measure consistently used in the medical and scientific literature to measure and identify the risk of heatrelated illness. See id.; Ball v. LeBlanc, 223 F. Supp. 3d 529, 537 (M.D. La. 2016). To forbid the district court from considering a maximum safe heat index is to require that court to remedy the constitutional violation that we have found exists, see Ball I, 792 F.3d at 596, without considering its cause. The record evidence, credited by the district court and not substantively challenged
14

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No. 17-30052
on appeal, demonstrates that these medically compromised plaintiffs face a risk of serious harm when they are exposed to heat indices above 88 degrees. See Ball, 223 F. Supp. 3d at 536–37. That factual finding must be considered when the district court assesses whether any heat-remediation plan is sufficient to remedy plaintiffs’ Eighth Amendment injury.1 See Graves v. Arpaio, 623 F.3d 1043, 1049–50 (9th Cir. 2010) (affirming injunction requiring sheriff to house pretrial detainees taking psychotropic medications in temperatures that do not exceed 85 degrees based on finding that exposure to higher temperatures presents an unreasonable risk of harm).
Of course, if the district court truly did conclude that the Second Plan was inadequate simply because it failed to maintain a heat index below 88 degrees, that might in practice be the same as mandating a maximum heat index and thus violate our court’s Ball I mandate (absent relevant new evidence). See United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (stating that mandate rule requires lower court to implement “both the letter and the spirit of the appellate court’s mandate” (quoting United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998))). But the district court concluded that the Second Plan was inadequate because of plaintiffs’ testimony that they
1 This is not to say that a constitutionally sufficient heat-remediation plan must maintain a heat index below 88 degrees. The district court found that the risk of serious harm due to heat “significantly increases when an individual is exposed to heat indices of 88 degrees or greater.” Ball, 223 F. Supp. at 537. But the Eighth Amendment does not protect against any and all risk of harm; rather, it protects against “extreme” conditions, Hudson v. McMillian, 503 U.S. 1, 9 (1992), that present an “unreasonable risk” of harm, Helling v. McKinney, 509 U.S. 25, 35 (1993). Determining whether “conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused.” Id. at 36. Determining the relevant level of risk “also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. In other words, that there is some risk of harm when the heat index exceeds 88 degrees does not necessarily mean that the Eighth Amendment requires a heat index below that number.
15

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No. 17-30052
“continued to experience heat-related symptoms during the implementation of Defendants’ Second Plan” and expert testimony that cool showers, ice, and fans, without more, did not eliminate the substantial risk of serious harm that these plaintiffs face from extreme heat. Ball, 223 F. Supp. 3d at 536–37, 544– 45. To be sure, the district court further concluded, based on the testimony of plaintiffs’ expert, that “[t]he only means to reduce the substantial risk of serious harm to Plaintiffs, and thereby remedy the Eighth Amendment violation in this case, is to lower the temperatures and heat indices to which Plaintiffs are exposed.” Id. at 545. But, in a facility where the heat index frequently exceeds 100 degrees and has risen as high as 110.3 degrees, id. at 531–32, requiring the state to lower the heat indices to which these medically compromised plaintiffs are exposed is not the same as mandating that the heat index remain below 88 degrees. It is only the latter that (absent relevant new evidence) Ball I forbids.
Contrary to the majority opinion’s assertion, Ball I did not foreclose relitigating on remand whether a maximum heat index, or any other form of relief, could be necessary to remedy these plaintiffs’ constitutional injury. By explicitly noting that “Gates upheld an injunction providing narrower relief” and that there was “no showing that the Constitution mandated more relief for these prisoners for the same prison condition in this case,” 792 F.3d at 600, Ball I contemplated the possibility that new evidence could require other— possibly broader—relief.2 That was for good reason. Injunctions must be open
2 The majority opinion states that Ball I “closed the door to air conditioning as a permissible remedy here.” I agree, but only because plaintiffs did not produce any substantively new evidence demonstrating that air conditioning—in the sense of mechanical cooling—is necessary to remedy their constitutional injuries. However, I disagree to the extent that the majority opinion suggests that Ball I closed the door to air conditioning regardless of any new evidence presented. I read Ball I to narrowly say that air conditioning was not a permissible remedy absent evidence that the more modest measures approved of
16

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No. 17-30052
to modification in light of new facts or changed circumstances. See Brown v. Plata, 563 U.S. 493, 542–43 (2011) (“A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. . . . [A] court must remain open to a showing . . . that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protection.”). No mandate can change that. See Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 190 (5th Cir. 2008) (stating, in context of a law-of-the-case challenge, that “[m]odification of an injunction is appropriate when the legal or factual circumstances justifying the injunction have changed” (quoting ICEE Distribs., Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 850 (5th Cir. 2006))); Amado v. Microsoft Corp., 517 F.3d 1353, 1360 (Fed. Cir. 2006) (stating that the mandate rule “does not preclude the district court from modifying, or dissolving, the injunction if it determines that it is no longer equitable”); Matthews, 312 F.3d at 657 (stating that the law of the case doctrine, which includes the mandate rule, “merely expresses the practice of courts generally to refuse to reopen what has been decided, [it is] not a limit to their power” (quoting Messinger v. Anderson, 225 U.S. 436, 444 (1912))).
While it is true, as the majority opinion notes, that the new-evidence exception to the mandate rule is inapplicable to issues squarely foreclosed by
in Gates were insufficient for these plaintiffs. In Yates v. Collier, 868 F.3d 354 (2017), two of our colleagues from the Ball I panel confirmed that “Ball [I] 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 an impermissible remedy.” Id. at 370. Yates is a clarification of, and consistent with, Ball I. See 792 F.3d at 600 (noting absence of evidence that plaintiffs in this case require more extensive relief than plaintiffs in Gates). Furthermore, as the majority opinion recognizes, some form of cooled air—be it from an IcyBreeze unit or diverted cool, i.e., air-conditioned, air—can be a permissible remedy.
17

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a previous appeal, whether a different remedy could be necessary under unaddressed new facts is not an issue that can be squarely foreclosed. Ball I held only that the evidence then in the record was insufficient to establish the necessity of facility-wide air conditioning and/or a maximum heat index of 88 degrees. To suggest, as I think the majority opinion does, that Ball I’s recordspecific holding forecloses future litigation of the necessity of those remedies is to imply that the mandate rule restricts a district court’s authority, and indeed duty, to modify an injunction in light of changed circumstances. But that is contrary to established law. See, e.g., Baum, 513 F.3d at 190.
The static quality that I fear the majority’s opinion may inject into our Eighth Amendment jurisprudence is also inconsistent with the nature of Eighth Amendment rights. Gates does not set a ceiling for permissible heatrelief measures in prisons. “No static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Whether conditions of confinement amount to an Eighth Amendment violation necessarily depends on the context-specific “totality of the circumstances.” Id. at 362-63. Courts must be free to consider those circumstances, as they change, and in light of evolving standards of decency, when determining what relief the Eighth Amendment requires.
Because there was no new evidence submitted relevant to the necessity of an 88 degree maximum heat index, I would vacate just that single provision of the injunction mandating such a maximum heat index. The rest of the injunction, ordering remedies previously approved of by us, is consistent with Ball I and the PLRA, particularly given the evidence presented that the Gates
18

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remedies alone were insufficient to remedy plaintiffs’ constitutional injuries. I would therefore affirm it.
19

Case: 17-30052 Document: 00514330182 Page: 1 Date Filed: 01/31/2018
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BILL OF COSTS

Print Form

NOTE: The Bill of Costs is due in this office within 14 days from the date of the opinion, See FED. R. APP. P. & 5TH CIR. R. 39. Untimely bills of costs must be accompanied by a separate motion to file out of time, which the court may deny.

_______________________________________________ v. __________________________________________ No. _____________________

The Clerk is requested to tax the following costs against: _________________________________________________________________________________________

COSTS TAXABLE UNDER Fed. R. App. P. & 5th Cir. R. 39
Docket Fee ($500.00) Appendix or Record Excerpts Appellant’s Brief Appellee’s Brief Appellant’s Reply Brief Other:

REQUESTED No. of Copies Pages Per Copy Cost per Page* Total Cost

ALLOWED (If different from amount requested)

No. of Documents

Pages per Document

Cost per Page* Total Cost

Total $ ________________

Costs are taxed in the amount of $ _______________

Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.

State of County of _________________________________________________

LYLE W.CAYCE, CLERK
By ____________________________________________ Deputy Clerk

I _____________________________________________________________, do hereby swear under penalty of perjury that the services for which fees have been charged were incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to opposing counsel, with postage fully prepaid thereon. This _______________ day of ________________________________, ______________.

*SEE REVERSE SIDE FOR RULES GOVERNING TAXATION OF COSTS

_____________________________________________________________________ (Signature)
Attorney for __________________________________________

Case: 17-30052 Document: 00514330182 Page: 2 Date Filed: 01/31/2018
FIFTH CIRCUIT RULE 39
39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.15 per page, including cover, index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5TH CIR. R. 32.2.3that mandates that briefs must lie reasonably flat when open shall be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies of an appendix or record excerpts, unless the clerk gives advance approval for additional copies.
39.2 Nonrecovery of Mailing and Commercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs.
39.3 Time for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in FED. R. APP. P. 39(D). See 5TH CIR. R. 26.1.

FED. R. APP. P. 39.

COSTS

(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise;

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law.

©) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of copying.

(d) Bill of costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must – within 14 days after entry of judgment – file with the circuit clerk, with proof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must – upon the circuit clerk’s request – add the statement of costs, or any amendment of it, to the mandate.

(e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.

Case: 17-30052 Document: 00514330183 Page: 1 Date Filed: 01/31/2018

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

January 31, 2018
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc
No. 17-30052 Elzie Ball, et al v. James LeBlanc, et al USDC No. 3:13-CV-368
--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)
FED R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.
Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that this information was given to your client, within the body of your motion to withdraw as counsel.

Case: 17-30052 Document: 00514330183 Page: 2 Date Filed: 01/31/2018
The judgment entered provides that plaintiffs-appellees pay to defendants-appellants the costs on appeal.
Sincerely, LYLE W. CAYCE, Clerk
By: _______________________ Erica A. Benoit, Deputy Clerk Enclosure(s) Mr. Colin Andrew Clark Mr. Jeffrey K. Cody Ms. Mercedes Hardy Montagnes Ms. Elizabeth Baker Murrill Ms. Mary E. Roper Mr. Nilay U. Vora Mr. Winston Eric White

 
 Case 3:13-cv-00368-BAJ-EWD Document 475 11/05/18 Page 1 of 3

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, NATHANIEL CODE, AND JAMES MAGEE,
PLAINTIFFS
VS.
JAMES M. LEBLANC, SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, BURL CAIN, WARDEN OF THE LOUISIANA STATE PENITENTIARY, JAMES CRUZE, WARDEN OF DEATH ROW, AND THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
DEFENDANTS

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CIVIL ACTION NO. 13-368

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*

*

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JUDGE: BAJ

*

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*

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MAGISTRATE: EWD

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JOINT MOTION FOR CONDITIONAL DISMISSAL
NOW INTO COURT COME THE PARTIES, through undersigned counsel, who, having entered into a settlement agreement,1 jointly move this Court for entry of an Order conditionally dismissing this action pursuant to Fed. R. Civ. P. 41(a)(2). Final dismissal of this action shall be conditional upon the parties remaining in substantial compliance with the terms of the agreement for a period of one year from the date on which the agreement was signed. At such time, the parties will jointly move the Court for entry of a Final Order dismissing the action pursuant to Fed. R. Civ. P. 41(a)(2). Until that time, the parties request that the case be placed on the Court’s inactive docket. The parties further request that the Court retain jurisdiction for all purposes, including to enforce the terms of the agreement reached by the parties. See Kokkonen v.
1 The agreement is attached to this Motion as Exhibit 1. 1

Case 3:13-cv-00368-BAJ-EWD Document 475 11/05/18 Page 2 of 3

Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994); Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 430 (5th Cir. 2002).

Date: November _5_, 2018 Jeff Landry, Attorney General

/s/Colin Clark___________________ Colin Clark, Bar No. 33775 Assistant Solicitor General Assistant Attorney General Louisiana Department of Justice 1885 North 3rd Street, P.O. Box 94005 Baton Rouge, Louisiana 70804-9005 Telephone: (225) 326-6200 Facsimile: (225) 326-6297 Clarkc@ag.louisiana.gov
Mary E. Roper, Bar No. 22146 Jeffrey K. Cody, Bar No. 28536 SHOWS, CALI & WALSH, LLP 628 St. Louis Street (70802) P.O. Drawer 4425 Baton Rouge, LA 70821 Telephone: (225) 346-1461 Facsimile: (225) 346-1467 Maryr@scwllp.com Jeffreyc@scwllp.com
On behalf of Defendants

/s/ Mercedes Montagnes___________ Mercedes Montagnes, Bar No. 33287 The Promise of Justice Initiative 1024 Elysian Fields Avenue New Orleans, Louisiana 70117 Telephone: (504) 529-5955 Facsimile: (504) 595-8006 Mmontagnes@thejusticecenter.org
Nilay U. Vora, Ca. Bar No. 268339,
admitted pro hac vice The Vora Law Firm, P.C. 201 Santa Monica Blvd., Suite 300 Santa Monica, California 90401 Telephone: (424) 258-5190 Nvora@voralaw.com
Steven Scheckman, Bar No. 08472 Schiff, Scheckman & White LLP 650 Poydras Street, Suite 2760 New Orleans, Louisiana 70130 Telephone: (504) 309-7888 Facsimile: (504) 518-4831 Steve@sswethicslaw.com

On behalf of Plaintiffs

2

Case 3:13-cv-00368-BAJ-EWD Document 475 11/05/18 Page 3 of 3 CERTIFICATE OF SERVICE
I do hereby certify that on November 5, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send a notice of electronic filing to all CM/ECF participants.
/s/ Mercedes Montagnes MERCEDES MONTAGNES, La. Bar No. 33287 1024 Elysian Fields Avenue New Orleans, LA 70117 (504) 529-5955
3

 
 Case 3:13-cv-00368-BAJ-EWD Document 487 05/30/19 Page 1 of 2

Case 3:13-cv-00368-BAJ-EWD Document 487 05/30/19 Page 2 of 2

 
 Case 3:13-cv-00368-BAJ-EWD Document 475-1 11/05/18 Page 1 of 5

UNITED STATES DISTRICT COURT

MIDDLE I)ISTRICT OF LOUISIANA

ELZIE BALL, ET AL. VERSUS JAMES M. LEBLANC, ET AL.

CIVIL ACTION NO. 13-CV-368
CHIEF JUDGE BRIAN A. JACKSON
MAGISTRATH JUDGE ERIN WILDER-DOOMES

SETTLEMENT AGREEMENT
The parties to Bcz// v. £gBJcz77c, 13-cv-368, United States District Cout for the Middle District of Louisiana (the "Court") enter into this settlement agreement to jointly resolve their differences over what remedial measures are required under the Prison Litigation Reform Act ("PLRA") to eliminate the alleged constitutional deficiencies in the conditions of Plaintiffs' confinement which were identified by the Fifth Circuit Coot of Appeal in Bc7JJ v. JeB/¢7zc, 792 F.3d 584 (5th Cir. 2015) ("Bcz/J J"), and Bo/J v. £eB/cz;7c, 881 F.3d 346 (5th Cir. 2018) ("Bo// J:J').
Except for the obligations expressly set forth in this agreement, and on the condition that Defendants remain in Substantial Compliance[ with the terns of this agreement, the Defendants, their successors, officers, agents, servants, employees, and attorneys and those persons in active cctncert or participation with Defendants, are released from any and all civil liability to Plaintiffs as it pertains to this case and claims of entitlement to heat remediation, with the exception of Second Motion to Set Attomeys' Fees and Costs and any motion for attomeys' fees and costs incured fi.om January 9, 2017 until the litigation of attomeys' fees is complete. Plaintiffs and Defendants agree that nothing in this agreement precludes an award of attomeys' fees and costs, including without limitation in the event that further litigation is required to enforce the provisions c>f this agreement.
By agreeing to the terms below, Defendants do not concede that the remedial ineasures identified in Gcr/cs v. Coo fr, 376 F.3d 323 (5th Cir. 2004) are insut`ficient to remediate conditions of confinement related to excessive heat for any inmate within the custody of the Louisiana Department of Corrections.

I For purposes of this agreement, "Substantial Compliance" means adherence in all material respects to the terms of this agreement, recognizing that one hundred percent (1000/o) compliance is not required. Isolated] non-substantive or immaterial deviations from the terms of this agreement will not necessarily prevent a finding of Substantial Compliance. The determination of Substantial Compliance will take into account the extent to which the offending party can demonstrate that it has acted to remedy any eITors.
1

Case 3:13-cv-00368-BAJ-EWD Document 475-1 11/05/18 Page 2 of 5
SUBSTANTIVE PROVISIONS
Defendants will continue to monitor the heat and humidity in the tiers where the irmate plaintiffs reside on a dally basis during the months of April through October and will keep records of such data for at least 180 days. Any calculation of the heat index will use the formula established by the National Weather Service (`NWS"). The heat index calculator is found on the NWS website at http://www.wpc.ncep.noaa.govthtmltheatindex.shtml. This data will be provided to Plaintiffs' counsel upon request and while this agreement is in effect.
TThe following measures are to be provided to Plaintiffs when the heat index within their cells meets or exceeds 88 degrees Fahrenheit:
A, INMATH-OPERATED SHOWERS The inmate plaintiffs will continue to be provided with a minimum of fifteen minutes of shower time every day. Defendants will retain the previously installed two shower water valve controllers on the tiers which will allow inmate plaintiffs
to select between hot and cold water during the course of their showers. The record contains a picture of the valve controllers at the death row facility and a brochure of the shower equipment that was installed to provide temperature control. See ROA.9325u9326. The "hc>t" controller will supply the water at a seasonally preset temperature as the "regular" hygienic shower. The "cold" controller will supply water from the cold water line only.
8. ICE MACIIINES AND ICE CONTAINERS The inmate plaintiffs will continue to be provided with multiple containers of ice
in their cells. The current containers in use (one three-gallon ice container and one designed to hold six twelve-ounce cans) are depicted in this Court's record. See ROA.7027; ROA.9328. The inmate plaintiffs will continue to be provided with these containers or substantially similar containers that hold the at least the same quantities of ice in the futur.e. The ice containers will be timely replenished by prison staff upon request. Defendants will also retain the previously purchased individual ice containers that Plaintiffs enjoy access to inside their cell. The death row facility will retain and maintain in good workirig order the two ice machines present at the facility. See ROA.7028-7031; ROA.9327. Regardless, the inmates shall have consistent access to ice at all times.
C. FANS FE;Tinmate plaintiffs will retain access to individual fans of equal or greater air flow capacity to the ones currently in use. The record contains information about the fans purchased and a picture of the current ones in use. See ROA.7026;
ROA.9329.
D. WATER iEJi=ate plaintiffs will continue to be provided with constant access to clean,
potable drinking water through use of the faucets in their cells.
2

Case 3:13-cv-00368-BAJ-EWD Document 475-1 11/05/18 Page 3 of 5
F. Icy BREEZE unTs
The inmate plaintiffs will have access to one working "IcyBreeze" unit for each individual Plaintiff. The "IcyBreeze" unit will be positioned about 12 inches from the bars of each cell, Prison staff will continue to supply ice to these "IcyBreeze" units regularly and upon request.
G.
5¥o:iuo:acin:a::LE#¥eoasMi::=opeEs?EH-geTgj3¥esin
the door that separates the air-conditioned Cfuard's Pod from Tier C. Plaintiffs will continue to be housed on Tier C in the three cells closest to the door that comects the tier to the Guard's Pod. Defendants will maintain in good working order a curtain constructed of heavy plastic in order to keep the diverted cool air inside the portion of Tier C in which Plaintiffs are confined.
D_ISPUTE RESOLUTION AND TERMINATIO_N
The parties agree that this agreement is enforceable in federal court and that dismissal of this case will be conditional upon Defendants' Substantial Compliance with the terms of this agreement. Within five days of the execution of this agreement, the parties shall jointly move the Court for an entry of an Order conditionally dismissing this action, pursuant to Fed. R. Civ. P. 41 (a)(2), which is conditional upon the parties achieving Substantial Compliance with its terms. This agreement shall be attached to such motion. The motion shall request that the case be placed on the Court's inactive docket and the Court shall retain jurisdiction over the case. If either party fails to comply with the terms of this agreement, any party may file a motion to restore the case to the Court's active docket. One year after Substantial Compliance has been achieved, if no motion to restore the case to the Court's active docket has been filed, the parties will joilitly move the Court for entry of a Final Order dismissing this action, pursuant to Fed. R. Civ. P. 41(a)(2). This dismissal shall be without prejudice to any parties' right to move to reinstate the proceeding,
pursuant to 18 U.S.C. § 3626(c)(2)(A). If counsel for one of the parties believes that another party is not complying with some
aspect of the agreement, they will notify opposing counsel in writing, identifying any facts supporting their belief. All parties agree that they shall promptly provide opposing counsel with a response and will resolve any problems that are determined to exist. If the aggrieved party is nc)t satisfied with opposing counsel's response, tne parties agree to work together in good faith toward resolving the issue. If the parties are unable to resolve the issue(s) timely and satisfactorily, either party may move to return the case to the active docket or, if the case has been dismissed, to reinstate the matter pursuant to 18 U.S.C. § 3626(c)(2)(A). In the case that any party moves to reinstate, the parties agree that this Court shall have jurisdiction over that motion and any subsequent proceedings. Reinstatement shall be conditioned on a finding by the Court that a party has failed to remain in Substantial Compliance with the terms of the agreement.
The parties undertake this agreement provided that there are no substantial changes since June I, 2017 in the operation of the HVAC system (including the exhaust system) on Death Row, the provision of ice, the showers, the fans, or any other component or aspect of the relief granted. If Defendants wish to make any modification that will substantially impact the heat index on Tier C, or would substantially impact the listed conditions (A) through (G), which have been in place
3

Case 3:13-cv-00368-BAJ-EWD Document 475-1 11/05/18 Page 4 of 5
since June 1, 2017, they must seek leave from Plaintiffs before doing so, and in the event the parties cannot agree on the changes, either party may move to make active or reinstate this matter pursuant to 18 U.S.C. § 3626(c)(2)(A).
In the event that the permanent security status of any Plaintiff will change, the Defendants agree to give the Plaintiffs prior notice such that they can seek to reinstate this matter if plaintiffs believe the change will result in a failure of substantial compliance. The parties agree to work in good faith to flnd a satisfactory alternative settlement if Plaintiffs disagree with the Defendants' proposed change. If Defendants undertake such modifications without seeking Plaintiffs' consent, Plaintiffs may reinstate this matter.
The parties have already agreed that the Plaintiffs are to be permanently housed on Tier C of the Death Row Ccjmplex. If they are pemanently moved, the Defendants agree that they would not be in substantial compliance with this settlement agreement. The parties agree to work in good faith to find a satisfactory alternative settlement if the Defendants believe that the Plaintiffs must be permanently moved for any reason.
In addition, the Plaintiffs desire to have a short period to ensure the efficacy of this agreement. Therefore, the Plaintiffs may, for any I.eason, withdraw from this agreement between July 1, 2019 and July 30, 2019 if the Plaintiffs experience a heat index in excess of 88 degrees in their cells on at least two consecutive days. If the Plaintiffs withdraw within this period, the case will be reinstated pursuant to 18 U.S.C. § 3626(c)(2)(A) to the Court's active docket. The Defendants agree to return the conditions to the Third Plan until they are able to file a Fourth Plan with this Court and until the Court has had an opportunity to rule upon any obj ections to the Fourth Plan the Plaintiffs may have, if any.
Pursuant to Sup. Ct. R. 46.1, the parties agree to jointly file a request to dismiss the Plaintiffs' cunently pending petition for certiorari with the United States Supreme Court, No. 18162, within three days of the signing of this agreement.
ADDITIONAL PROVISIONS
This agreement constitutes the entire agreement among the parties as to all claims in this litigation. This agreement supersedes all prior agreements, whether written, oral, or implied. Each party represents that it has full legal authority to enter into and execute this agreement.
This agreement may not be altered or anended, except in writing signed by all parties or their representatives.
This agreement will be binding on all successors, assigns, employees, agents, and all othei.s working on behalf of Plaintiffs and Defendants.
4

Case 3:13-cv-00368-BAJ-EWD Document 475-1 11/05/18 Page 5 of 5

Executed this

day of

Jeff Landry, Attorney General

2018 in Baton Rouge, Louisiana.

Colin Clark, Bar No. 33775 Assistant Solicitor General Assistant Attorney General Louisiana Department of Justice 1885 North 3rd Street, P.O. Box 94005 Baton Rouge, Louisiana 70804-9005 Telaphone: (225) 326-6200 Facsimile: (225) 326-6297 Clarkc@ag.louisiana.gov
Mary E. Roper, Bar No. 22146 Jeffrey K. Cody, Bar No. 28536 SHOWS, CALI & WALSH, LLP 628 St. Louis Street (70802) P.O. Drawer 4425 Baton Rouge, LA 70821 Telephone: (225) 346-1461 Facsimile: (225) 346-1467 Maryr@scwllp.com Jeffreyc@scwllp.com
On behalf of Def ;endants

/
¥heercper:::±¥e°onft:::te]:'#:t¥t°±.v:3287
1024 Elysian Fields Avenue New Orleans, Louisiana 70117 Telephone: (504) 529-5955 Facsimile: (504) 595-8006 Mmontagnes@defendla.org
Nilay U. Vora, Ca. Bar No. 268339, admitted pro hac vice The Vora Law Fim, P.C. 201 Santa Monica Blvd., Suite 300 Santa Mohica, California 90401 Telephone: (424) 258-5190 Nvora@voralaw.com
Steven Scheckman, Bar No. 08472 Schiff, Scheckman & White LLP 650 Poydras Street, Suite 2760 New Orleans, Louisiana 70130 Telephone: (504) 309-7888
Facsimile: (504) 518-4831
Steve@sswethicslaw.com

On behalf of Plainfif fs

 
 ATTENTION,CLOSED,STAYED
U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:13−cv−00368−BAJ−EWD

Ball et al v. LeBlanc et al Assigned to: Judge Brian A. Jackson Referred to: Magistrate Judge Erin Wilder−Doomes Demand: $0 Case in other court: 5th Circuit, 17−30052 Cause: 42:1983 Civil Rights Act
Special Master

Date Filed: 06/10/2013 Date Terminated: 04/18/2019 Jury Demand: None Nature of Suit: 555 Prisoner Conditions Jurisdiction: Federal Question

Paul J. Hebert TERMINATED: 06/13/2019

represented by Paul J. Hebert Ottinger Hebert, LLC P. O. Box 52606 Lafayette, LA 70505−2606 337−232−2606 Fax: 337−232−9867 FAX Email: pjhebert@ohllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Elzie Ball

represented by Mercedes Hardy Montagnes Promise of Justice 1024 Elysian Fields 7011 New Orleans, LA 70117 504−529−5955 Email: mmontagnes@defendla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Claire O'K Compa The Promise of Justice Initiative 636 Baronne St New Orleans, LA 70113 (504) 529−5955 Email: bethc@thejusticecenter.org TERMINATED: 10/12/2017 ATTORNEY TO BE NOTICED

James M. Lee Lee Tran and Liang LLP, 601 South Figueroa St Suite 3900 Los Angeles, CA 90017 213−612−8900 Fax: 213−612−3773 Email: james.lee@ltlattorneys.com TERMINATED: 08/11/2016 PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica C. Kornberg Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow 1875 Century Park East 23rd Floor Los Angeles, CA 90067 310−201−2100

Plaintiff Nathaniel Code

Fax: 310−201−2100 Email: jck@birdmarella.com PRO HAC VICE ATTORNEY TO BE NOTICED
Mitchell A. Kamin Covington & Burling 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067−4643 424−332−4800 Fax: 424−332−4749 Email: mkamin@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Nilay U. Vora The Vora Law Firm, P.C. 2425 Olympic Blvd Suite 4000W Santa Monica, CA 90403 424−258−5190 Fax: (310) 203−0567 Email: nvora@voralaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Robert Scheckman Schiff, Scheckman & White LLP 650 Poydras Street Suite 2760 New Orleans, LA 70130 504−309−7888 Fax: 504−518−4831 Email: steve@sswethicslaw.com ATTORNEY TO BE NOTICED
represented by Mercedes Hardy Montagnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Claire O'K Compa (See above for address) TERMINATED: 10/12/2017 ATTORNEY TO BE NOTICED
James M. Lee (See above for address) TERMINATED: 08/11/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica C. Kornberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mitchell A. Kamin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nilay U. Vora

Plaintiff James Magee
V. Defendant James M. LeBlanc Secretary of the Louisiana Department of Public Safety and Corrections

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Robert Scheckman (See above for address) ATTORNEY TO BE NOTICED
represented by Mercedes Hardy Montagnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Claire O'K Compa (See above for address) TERMINATED: 10/12/2017 ATTORNEY TO BE NOTICED
James M. Lee (See above for address) TERMINATED: 08/11/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica C. Kornberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mitchell A. Kamin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nilay U. Vora (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Robert Scheckman (See above for address) ATTORNEY TO BE NOTICED
represented by Colin Andrew Clark United States Attorney's Office, Louisiana Middle Distr 777 Florida Street Suite 208 Baton Rouge, LA 70801 225−389−0443 Fax: 225−389−0561 Email: Colin.Clark@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmond Wade Shows Shows, Cali & Walsh, LLp P. O. Drawer 4425 628 St. Louis Street

Baton Rouge, LA 70821 225−346−1461 Fax: 225−346−1467 Email: wade@scwllp.com TERMINATED: 10/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey K. Cody Shows, Cali, Berthelot & Walsh, LLP 628 St. Louis Street Baton Rouge, LA 70802 225−346−1461 Fax: 225−346−1467 Email: jeffreyc@scwllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy L. McInnis Porteous Hainkel Johnson 343 Third Street Suite 302 Baton Rouge, LA 70801 225−448−0915 Fax: 225−448−0916 Email: amcinnis@phjlaw.com ATTORNEY TO BE NOTICED
Carlton Jones , III Roedel, Parsons, Koch, Blache, Balhoff & McCollister 8440 Jefferson Highway Suite 301 Baton Rouge, LA 70809 225−929−7033 Fax: 225−928−4925 Email: cjones@roedelparsons.com (Inactive) TERMINATED: 11/20/2017 ATTORNEY TO BE NOTICED
Grant Joseph Guillot Adams and Reese, LLP 450 Laurel Street Suite 1900 Baton Rouge, LA 70801 (225) 336−5200 Fax: (225) 336−5220 Email: grant.guillot@arlaw.com TERMINATED: 01/18/2017 ATTORNEY TO BE NOTICED
Jacqueline B. Wilson Jacqueine B. Wilson Attorney at Law, LLC P.O. Box 164 Zachary, LA 70791 225−235−1603 Email: wilsonj@ag.louisiana.gov TERMINATED: 05/09/2014 ATTORNEY TO BE NOTICED
James L. Hilburn Officer of The Parish Attorney/Litigation Division

Defendant
Burl Cain Warden of the Louisiana State Penitentiary

222 St. Louis Street Room 902 Baton Rouge, LA 70802 225−389−3114 Fax: 225−389−8736 Email: hilburnj@ag.louisiana.gov ATTORNEY TO BE NOTICED
Judith R. E. Atkinson Roedel, Parsons, Koch, Blache, Balhoff & McCollister 8440 Jefferson Highway Suite 301 Baton Rouge, LA 70809 225−929−7033 Fax: 929−6942 Email: jatkinson@roedelparsons.com ATTORNEY TO BE NOTICED
Mary E. Roper Shows, Cali, & Walsh LLP 628 St. Louis Street Baton Rouge, La 70802 225−346−1461 Email: maryr@scwllp.com TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
Ross A. Dooley Roedel Parsons 8440 Jefferson Hwy. Suite 301 Baton Rouge, LA 70809 225−929−7033 Fax: 225−928−4925 Email: rdooley@roedelparsons.com ATTORNEY TO BE NOTICED
Thomas E. Balhoff Roedel, Parsons, Koch, Blache, Balhoff & McCollister 8440 Jefferson Highway Suite 301 Baton Rouge, LA 70809 225−929−7033 Fax: 225−928−6045 FAX Email: tbalhoff@roedelparsons.com ATTORNEY TO BE NOTICED
Winston Eric White Louisiana Department of Justice P.O. Box 94005 Baton Rouge, LA 70804 (225) 326−6200 Email: whitew@ag.louisiana.gov ATTORNEY TO BE NOTICED
represented by Colin Andrew Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmond Wade Shows

Defendant
Angela Norwood Warden of Death Row TERMINATED: 09/28/2015

(See above for address) TERMINATED: 10/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ross A. Dooley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy L. McInnis (See above for address) ATTORNEY TO BE NOTICED
Carlton Jones , III (See above for address) ATTORNEY TO BE NOTICED
Grant Joseph Guillot (See above for address) TERMINATED: 01/18/2017 ATTORNEY TO BE NOTICED
Jacqueline B. Wilson (See above for address) TERMINATED: 05/09/2014 ATTORNEY TO BE NOTICED
James L. Hilburn (See above for address) ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED
Judith R. E. Atkinson (See above for address) ATTORNEY TO BE NOTICED
Mary E. Roper (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
Thomas E. Balhoff (See above for address) ATTORNEY TO BE NOTICED
Winston Eric White (See above for address) ATTORNEY TO BE NOTICED
represented by Edmond Wade Shows (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ross A. Dooley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Louisiana Department of Public Safety and Corrections

Amy L. McInnis (See above for address) ATTORNEY TO BE NOTICED
Carlton Jones , III (See above for address) ATTORNEY TO BE NOTICED
Grant Joseph Guillot (See above for address) ATTORNEY TO BE NOTICED
Jacqueline B. Wilson (See above for address) TERMINATED: 05/09/2014 ATTORNEY TO BE NOTICED
James L. Hilburn (See above for address) ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED
Judith R. E. Atkinson (See above for address) ATTORNEY TO BE NOTICED
Mary E. Roper (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
Thomas E. Balhoff (See above for address) ATTORNEY TO BE NOTICED
represented by Colin Andrew Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmond Wade Shows (See above for address) TERMINATED: 10/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy L. McInnis (See above for address) ATTORNEY TO BE NOTICED
Carlton Jones , III (See above for address) TERMINATED: 11/20/2017 ATTORNEY TO BE NOTICED

Defendant Warden James Cruz

Grant Joseph Guillot (See above for address) TERMINATED: 01/18/2017 ATTORNEY TO BE NOTICED
Jacqueline B. Wilson (See above for address) TERMINATED: 05/09/2014 ATTORNEY TO BE NOTICED
James L. Hilburn (See above for address) ATTORNEY TO BE NOTICED
Judith R. E. Atkinson (See above for address) ATTORNEY TO BE NOTICED
Mary E. Roper (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
Ross A. Dooley (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Balhoff (See above for address) ATTORNEY TO BE NOTICED
Winston Eric White (See above for address) ATTORNEY TO BE NOTICED
represented by Colin Andrew Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy L. McInnis (See above for address) ATTORNEY TO BE NOTICED
Carlton Jones , III (See above for address) TERMINATED: 11/20/2017 ATTORNEY TO BE NOTICED
Edmond Wade Shows (See above for address) TERMINATED: 10/16/2017 ATTORNEY TO BE NOTICED
Grant Joseph Guillot (See above for address) TERMINATED: 01/18/2017 ATTORNEY TO BE NOTICED

Amicus United States of America
V. Interested Party Edward Wade Shows

James L. Hilburn (See above for address) ATTORNEY TO BE NOTICED
Mary E. Roper (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
Ross A. Dooley (See above for address) ATTORNEY TO BE NOTICED
Winston Eric White (See above for address) ATTORNEY TO BE NOTICED
represented by Catherine M. Maraist United States Attorney's Office Middle District of Louisiana 777 Florida Street Suite 208 Baton Rouge, LA 70801 225−389−0443 Fax: 225−389−0685 Email: catherine.maraist@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by S. Brooke Barnett−Bernal Long Law Firm, LLP One United Plaza 1800 City Farm Drive Building 6 Baton Rouge, LA 70806 225−922−5110 Fax: 225−922−5105 Email: bbb@longlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Lane Ewing , Jr Cazayoux Ewing, LLC 257 Maximilian Street Baton Rouge, LA 70802 225−650−7400 Fax: 225−650−7401 Email: lane@cazayouxewing.com ATTORNEY TO BE NOTICED
LaToya Danielle Jordan The Louisiana Board of Ethics Civil Rights Section 617 N. Third Street 70802 Baton Rouge, LA 70802 225−219−5604 Fax: 225−381−7271

Interested Party Amy L McInnis
Interested Party Jacqueline B Wilson

Email: latoya.jordan@la.gov TERMINATED: 01/30/2017 ATTORNEY TO BE NOTICED
Michael A. Patterson Long Law Firm, LLP One United Plaza 1800 City Farm Drive Building 6 Baton Rouge, LA 70806 225−922−5110 Fax: 225−922−5105 FAX Email: map@longlaw.com ATTORNEY TO BE NOTICED
represented by S. Brooke Barnett−Bernal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Lane Ewing , Jr (See above for address) ATTORNEY TO BE NOTICED
LaToya Danielle Jordan (See above for address) TERMINATED: 01/30/2017 ATTORNEY TO BE NOTICED
Michael A. Patterson (See above for address) ATTORNEY TO BE NOTICED
represented by S. Brooke Barnett−Bernal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Lane Ewing , Jr (See above for address) ATTORNEY TO BE NOTICED
LaToya Danielle Jordan (See above for address) TERMINATED: 01/30/2017 ATTORNEY TO BE NOTICED
Michael A. Patterson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/10/2013
06/10/2013

# Docket Text
1 COMPLAINT against Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angie Norwood ( Filing fee $ 400 receipt number 053N−956181.), filed by Elzie Ball, James Magee, Nathaniel Code. (Attachments: # 1 Cover sheet, # 2 Related case)(Montagnes, Mercedes) (Entered: 06/10/2013)
2 NOTICE of Civil Cover Sheet by Elzie Ball, Nathaniel Code, James Magee (Montagnes, Mercedes) (Entered: 06/10/2013)

06/10/2013 06/10/2013 06/10/2013 06/10/2013 06/10/2013
06/10/2013 06/10/2013
06/11/2013 06/11/2013 06/11/2013
06/18/2013
06/18/2013 06/24/2013

3 NOTICE of Summons by Elzie Ball, Nathaniel Code, James Magee (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(Montagnes, Mercedes) (Entered: 06/10/2013)
4 Summons Issued as to All Defendants. (NOTICE: Counsel shall print and serve both the summons and all attachments in accordance with Federal Rule of Civil Procedure 4.) (SMG) (Entered: 06/10/2013)
5 MOTION for Mitchell A. Kamin to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−956260) by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Affidavit, # 2 Certificates)(Montagnes, Mercedes) Modified to edit text on 6/10/2013 (SMG). (Entered: 06/10/2013)
6 MOTION for Nilay U Vora to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−956279) by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Affidavit, # 2 Certificates)(Montagnes, Mercedes) (Entered: 06/10/2013)
7 ORDER granting 6 Ex Parte Motion for Admission Pro Hac Vice. Nilay U. Vora admitted pro hac vice as attorney for the plaintiffs. Signed by Magistrate Judge Stephen C. Riedlinger on 6/10/2013. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 06/10/2013)
MOTION(S) REFERRED: 5 MOTION for Mitchell A. Kamin to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−956260). This motion is now pending before the USMJ. (SMG) (Entered: 06/10/2013)
8 ORDER granting 5 Ex Parte Motion for Admission Pro Hac Vice. Mitchell A. Kamin admitted pro hac vice as attorney for the plaintiffs. Signed by Magistrate Judge Stephen C. Riedlinger on 6/10/2013. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 06/10/2013)
9 SUMMONS Returned Executed by Elzie Ball, James Magee, Nathaniel Code. All Defendants. (Attachments: # 1 Proof of Service, # 2 Proof of Service, # 3 Proof of Service)(Montagnes, Mercedes) (Entered: 06/11/2013)
10 MOTION for Jessica Kornberg to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−956782) by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Certificates, # 2 Affidavit)(Montagnes, Mercedes) (Entered: 06/11/2013)
11 ORDER granting 10 Ex Parte Motion for Admission Pro Hac Vice. Jessica Kornberg admitted pro hac vice as attorney for the plaintiffs. Signed by Magistrate Judge Stephen C. Riedlinger on 6/11/2013. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 06/11/2013)
12 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit)(Montagnes, Mercedes) (Entered: 06/18/2013)
13 MOTION for Expedited Hearing on 12 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Memorandum in Support)(Montagnes, Mercedes) (Entered: 06/18/2013)
14 ORDER granting 13 Motion for Expedited Hearing on Motion for Preliminary Injunction. Hearing on 12 MOTION for Preliminary Injunction set for 7/2/2013 at 09:00 AM in Courtroom 2 before Chief Judge Brian A. Jackson. Plaintiffs' request that the Court waive the security requirenment of FRCP 65 shall also be heard at this time. Defendants shall file memo in opposition to Motion for Preliminary Injunction no later than 6/28/2013 at 5:00 p.m. Signed by Chief Judge Brian A. Jackson on 6/24/2013. (PJH) (Entered: 06/24/2013)

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Set/Reset Deadlines as to 12 MOTION for Preliminary Injunction . (PJH) (Entered: 06/24/2013)
15 MEMORANDUM in Opposition to 12 MOTION for Preliminary Injunction filed by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angie Norwood. (Attachments: # 1 Affidavit Exhibit A)(Wilson, Jacqueline) (Entered: 06/28/2013)
16 MOTION to Strike by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angie Norwood. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Proposed Order)(Wilson, Jacqueline) (Entered: 06/28/2013)
17 MOTION for Expedited Hearing on 16 MOTION to Strike by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Wilson, Jacqueline) (Entered: 06/28/2013)
18 MOTION for Extension of Time to File Responsive Pleadings by All Defendants. (Attachments: # 1 Proposed Order)(Jones, Carlton) (Entered: 06/28/2013)
19 ORDER granting 18 Ex Parte Motion for Extension of Time to File Responsive Pleadings. Defendants' responsive pleadings due by 7/23/2013. Signed by Magistrate Judge Stephen C. Riedlinger on 6/28/2013. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 06/28/2013)
Set/Reset Deadlines: Burl Cain answer due 7/23/2013; James M. LeBlanc answer due 7/23/2013; Louisiana Department of Public Safety and Corrections answer due 7/23/2013; Angie Norwood answer due 7/23/2013. (JDL) (Entered: 07/01/2013)
20 RESPONSE in Opposition to 16 MOTION to Strike filed by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit)(Montagnes, Mercedes) (Entered: 07/01/2013)
21 Proposed Findings of Fact by Elzie Ball, Nathaniel Code, James Magee. (Montagnes, Mercedes) (Entered: 07/01/2013)
22 MOTION for Leave to File Supplemental Affidavits in Opposition to 12 Motion for Preliminary Injunction and Incorporated Memorandum by All Defendants. (Attachments: # 1 Proposed Pleading; Order, # 2 Proposed Pleading; Supplemental Affidavit of Vannoy, # 3 Proposed Pleading; Singh Affidavit)(Wilson, Jacqueline) Modified to edit text and docket relationship on 7/2/2013 (SMG). (Entered: 07/01/2013)
23 MOTION for Expedited Hearing on 22 MOTION for Leave to File Supplemental Affidavits by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Wilson, Jacqueline) (Entered: 07/01/2013)
24 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Motion Hearing held on 7/2/2013 re 12 MOTION for Preliminary Injunction filed by Nathaniel Code, Elzie Ball, James Magee, 16 MOTION to Strike Exhibits filed by Burl Cain, Angie Norwood, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. Counsel presents oral argument to the Court. The Court defers ruling on Motion for Preliminary Injunction and Motion to Strike Exhibits until the evidentiary hearing scheduled for 8/5/2013 at 2:00 p.m., in Courtroom 2. Trial of this matter on the merits will commence immediately following the evidentiary hearing. Parties shall meet, confer, and develop a joint proposed discovery plan, as stated herein, and submitted their joint proposed discovery plan to the Court no later than 5:00 p.m. on 7/9/2013. Court will issue discovery order by 7/10/2013. Defendants shall begin 21 day collection of data on 7/15/2013. Matter will be scheduled for ptrl cnf prior to the 8/5/2013 hearing.(Court Reporter C. Smith−Neely.) (PJH) (Entered: 07/02/2013)
Set/Reset Deadlines: Joint Proposed Discovery Plan due no later than 5:00 PM on 7/9/2013. (JDL) (Entered: 07/03/2013)

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25 MOTION to Enroll Amy L. McInnis as Additional Attorney by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Wilson, Jacqueline) (Entered: 07/09/2013)
26 Proposed Scheduling Order by All Plaintiffs. (Montagnes, Mercedes) (Entered: 07/09/2013)
27 ORDER granting 25 Motion to Enroll as Additional Counsel. Added attorney Amy L. McInnis for James M. LeBlanc, Burl Cain, Angie Norwood and Louisiana Department of Public Safety and Corrections. Signed by Magistrate Judge Stephen C. Riedlinger on 7/9/2013. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 07/09/2013)
28 SCHEDULING ORDER: Discovery deadlines are established as stated herein. Proposed Pretrial Order due by 7/30/2013. Pretrial Conference set for 7/31/2013 at 03:30 PM in chambers before Chief Judge Brian A. Jackson. Discovery conference with United States Magistrate Judge Stephen C. Riedlinger is scheduled for 7/23/2013. Parties shall be responsible for contacting Judge Riedlinger's chambers to set the time and location of the conference.. Signed by Chief Judge Brian A. Jackson on 7/10/2013. (PJH) (Entered: 07/10/2013)
29 MOTION to Appoint Third Party Expert /Proposed Expert Data Collection by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Montagnes, Mercedes) Modified to edit text on 7/11/2013 (SMG). Modified on 7/11/2013 to edit event type to a motion (NLT). (Entered: 07/10/2013)
Set/Reset Deadlines/Hearings: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry) Proposed Pretrial Order due by 7/30/2013 at 12:00 PM. Evidentiary Hearing and Trial set for 8/5/2013 at 2:00 PM in Courtroom 2 before Chief Judge Brian A. Jackson. (JDL) (Entered: 07/11/2013)
Set/Reset Deadlines: Daubert Motions and Motions In Limine shall be filed by 7/26/2013. (JDL) (Entered: 07/11/2013)
30 MOTION to Substitute 29 MOTION to Appoint Third Party Expert To Address Typographical Errors by All Plaintiffs. (Attachments: # 1 Attachment Corrected document)(Montagnes, Mercedes) Modified to edit text on 7/11/2013 (SMG). (Entered: 07/11/2013)
31 Emergency Brief regarding Defendants Submission of Proposed Independent Expert. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Wilson, Jacqueline) (Entered: 07/11/2013)
32 MOTION for Expedited Consideration on 31 Emergency Brief regarding Defendants Submission of Proposed Independent Expert by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Wilson, Jacqueline) Modified to edit text on 7/11/2013 (SMG). (Entered: 07/11/2013)
33 ORDER regarding 29 Plaintiff's Proposed Expert Data Collection filed by Nathaniel Code, Elzie Ball, James Magee: The Defendants shall file a memorandum in response no later than 5:00 p.m. on 7/11/2013. Signed by Chief Judge Brian A. Jackson on 07/11/2013. (SMG) (Entered: 07/11/2013)
34 ORDER... Defendants Motion for Expedited Consideration (Doc. 32)is GRANTED. Plaintiffs Proposed Expert Data Collection(Doc. 29) and Defendants Submission of Proposed Independent Expert (Doc. 31) shall be heard with oral argument on Friday, July 12, 2013 at 11:30 a.m. via a telephone conference. Counsel for Defendants shall be responsible for initiating the conference call to opposing counsel and the Court, or in the alternative, obtaining a conference call−in number, and notifying the Court and opposing counsel of the conference call−in number and pass code.. Signed by Chief Judge Brian A. Jackson on 7/12/2013. (PJH) (Entered: 07/12/2013)
Set/Reset Deadlines/Hearings: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry) Telephone Conference set for 7/12/2013 at 11:30 AM before Chief Judge Brian A. Jackson. Counsel for Defendants shall be responsible for initiating the conference call toopposing counsel and the Court, or in

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the alternative, obtaining a conference call−innumber, and notifying the Court and opposing counsel of the conference call−in number andpass code.(PJH) (Entered: 07/12/2013)
35 MOTION for emergency status Conference by All Plaintiffs. (Montagnes, Mercedes) (Entered: 07/12/2013)
36 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Telephone Conference held on 7/12/2013. Counsel for Plaintiffs agreed toDefendants proposed expert, U.S. Risk Management. Counsel for Defendants further agreed to confirm with Defendants that they will seek no more than $10,000.00 in related expert costs at the conclusion of this litigation, if permitted. Parties also agreed to contact United States Magistrate Judge Stephen Riedlinger to schedule a settlement conference. Defendants Submission of Proposed Independent Expert (Doc. 31) is GRANTED. Plaintiffs Proposed Expert Data Collection (Doc. 29) is DENIED. Defendants are authorized to retain U.S. Risk Management for the purposes of i nstalling the necessary equipment, collecting the required data, and disseminating such data, as ordered by theCourt. See Docs. 24, 28. Defendants are authorized to retain U.S.Risk Management for the purposes of installing the necessary equipment, collecting the required data, and disseminating such data, as ordered by the Court. See Docs. 24, 28. Defendants shall ensure that the necessary equipment is installed in each of the death row tiers and in multiple locations throughout each tier, including empty inmate cells and/or inmate cells numbered six or higher, so that the most accurate data can be collected. Plaintiffs shall be permitted to retain an own expert to shadow U.S. Risk Management. Plaintiffs shall identify one individual, who shall be permitted to shadow U.S. Risk Management during the installation of the necessary equipment, and inspect the equipment at least once per week. However, Plaintiffs shall bear all costs of retaining such expert. (PJH) (Main Document 36 replaced on 7/15/2013) (PJH). Modified on 7/15/2013 to replace with signed document (PJH). Modified on 8/29/2013 to edit text (PJH). (Entered: 07/12/2013)
37 ORDER denying 35 Emergency Motion for Status Conference, without prejudice to Plaintiff's right to re−file the motion, as stated herein. The parties are cautioned, once again, that the Court is not inclined to be involved in each and every dispute that the parties have over the coming weeks. The parties are further encouraged to do everything within their power to resolve such issues before taking up the limited resources of the Court. Signed by Chief Judge Brian A. Jackson on 7/12/2013. (PJH) (Entered: 07/12/2013)
38 ANSWER to 1 Complaint, by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angie Norwood.(Wilson, Jacqueline) (Entered: 07/13/2013)
39 Unopposed MOTION for Leave to Depose the Plaintiffs Pursuant to Rule 30(a)(2)(B) by All Defendants. (Attachments: # 1 Proposed Order)(Jones, Carlton) (Entered: 07/16/2013)
MOTION(S) REFERRED: 39 Unopposed MOTION for Leave to Depose the Plaintiffs Pursuant to Rule 30(a)(2)(B) . This motion is now pending before the USMJ. (SMG) (Entered: 07/17/2013)
40 ORDER granting 39 MOTION for Leave to Depose the Plaintiffs Pursuant to Rule 30(a)(2)(B) on 7/19/2013. Signed by Magistrate Judge Stephen C. Riedlinger on 07/17/2013. (SMG) Modified to edit text on 7/17/2013 (SMG). (Entered: 07/17/2013)
41 ORDER Setting Discovery Conference for July 23, 2013 at 1:00 p.m. Counsel for the plaintiffs shall arrange a conference call and provide the court and counsel for the defendants with the call−in number or other instructions. The conference will be canceled if counsel for the parties agree and advise the court that it is not needed. Signed by Magistrate Judge Stephen C. Riedlinger on 7/18/2013. (LLH) (Entered: 07/18/2013)
Set/Reset Deadlines/Hearings: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry) Discovery Conference set for 7/23/2013 at 01:00 PM before Magistrate Judge Stephen C. Riedlinger. (LLH) (Entered: 07/18/2013)

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42 Joint MOTION for Protective Order by All Defendants. (Attachments: # 1 Proposed Pleading; Proposed Protective Order)(Wilson, Jacqueline) (Main Document 42 replaced on 7/25/2013) (SMG). (Entered: 07/23/2013)
49 MINUTE ENTRY/RULING ON DISCOVERY DISPUTE: Discovery Conference held on 7/23/2013 before Magistrate Judge Stephen C. Riedlinger. Several discovery disputes were resolved at the conference, and three matters were held over until 7/25/2013. Following the settlement conference held on that date, the three remaining discovery disputes were resolved. Dfts were ordered to file their supplemental discovery responses by 5:00 p.m. on 7/29/2013. This ruling briefly recounts those discovery requests as to which a supplemental response is due... (BNW) (Entered: 07/29/2013)
MOTION(S) REFERRED: 42 Joint MOTION for Protective Order . This motion is now pending before the USMJ. (SMG) (Entered: 07/24/2013)
43 ORDER granting 42 Motion for Protective Order. Signed by Magistrate Judge Stephen C. Riedlinger on 07/24/2013. (SMG) (Entered: 07/24/2013)
44 NOTICE TO COUNSEL: STATUS CONFERENCE/SETTLEMENT CONFERENCE set for 7/25/2013 at 1:00 PM in chambers before Magistrate Judge Stephen C. Riedlinger. [PLEASE NOTE: There will be NO CONFERENCE on this date at 10:30 a.m.] (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BNW) Modified on 7/24/2013 (BNW). (Entered: 07/24/2013)
45 MOTION for Writ of Habeas Corpus ad testificandum by Elzie Ball. (Compa, Elizabeth) (Entered: 07/25/2013)
46 MOTION for Writ of Habeas Corpus ad testificandum by Nathaniel Code. (Compa, Elizabeth) (Entered: 07/25/2013)
47 MOTION for Writ of Habeas Corpus ad testificandum by James Magee. (Compa, Elizabeth) (Entered: 07/25/2013)
MOTION(S) REFERRED: 45 MOTION for Writ of Habeas Corpus ad testificandum . This motion is now pending before the USMJ. (CGP) (Entered: 07/25/2013)
MOTION(S) REFERRED: 46 MOTION for Writ of Habeas Corpus ad testificandum . This motion is now pending before the USMJ. (CGP) (Entered: 07/25/2013)
MOTION(S) REFERRED: 47 MOTION for Writ of Habeas Corpus ad testificandum . This motion is now pending before the USMJ. (LLH) (Entered: 07/25/2013)
48 MINUTE ENTRY/SETTLEMENT CONFERENCE REPORT: Settlement Conference held on 7/25/2013 before Magistrate Judge Stephen C. Riedlinger. No settlement was reached at the conference. Case remains assigned for a preliminary injunction hearing and trial beginning August 5, 2013. (BNW) (Entered: 07/26/2013)
Motions No Longer Referred: 47 MOTION for Writ of Habeas Corpus ad testificandum , 45 MOTION for Writ of Habeas Corpus ad testificandum , 46 MOTION for Writ of Habeas Corpus ad testificandum . This motion is now pending before the USDJ. (NLT) (Entered: 07/26/2013)
50 Supplemental RESPONSE to Discovery Request by All Defendants.(McInnis, Amy) Modified on 7/30/2013 (LLH). (Entered: 07/29/2013)
51 Notice to Counsel: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) Bench Trial in this matter is reset for 8/5/2013 at 08:30 AM in Courtroom 2 before Chief Judge Brian A. Jackson. *** THIS IS A TIME CHANGE ONLY.(PJH) (Entered: 07/30/2013)
52 Joint MOTION to Extend Deadline to File Pre−Trial Order by All Defendants. (McInnis, Amy) Modified on 7/30/2013 to edit text (CGP). (Entered: 07/30/2013)
53 Proposed Pretrial Order by All Plaintiffs. (Attachments: # 1 Statement of Undisputed Facts, # 2 Def. Statement, # 3 Pl. Statement, # 4 Exhibit List Def., # 5 Pl. Obj. Exhibit List, # 6 Exhibit List Pl., # 7 Def. Obj. Exhibit List, # 8 Def. Findings of Fact and Conclusions of Law, # 9 Pl. Findings of Fact and Conclusions of Law, # 10 Joint Stip

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# 1, # 11 Joint Stip # 2)(Montagnes, Mercedes) (Entered: 07/30/2013)
54 ORDER granting 52 Motion to Extend Discovery Deadlines. Final Pretrial Order due by 5:00 p.m. on July 30, 2013. Signed by Chief Judge Brian A. Jackson on 7/30/2013. (LLH) (Entered: 07/30/2013)
55 MOTION to Request Judicial Notice of Administrative Prison Regulations and Louisiana Laws Requiring Climate Control by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit)(Montagnes, Mercedes) Modified to edit text on 7/31/2013 (SMG). (Entered: 07/30/2013)
57 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Final Pretrial Conference held on 7/31/2013. The Court encouraged Counsel to confer and try to reach stipulations on the disputed issues included in the Proposed Pretrial Order. Defendants memorandum in opposition to plaintiffs motion to request judicial notice (doc. 55), if any, shall be filed no later than 12:00 p.m. on Friday, August 2, 2013. Counsel shall file a pre−trial brief, limited to 5 pages in length, no later than 12:00 p.m. on Friday, August 2, 2013. The pretrial brief shall address the following: 1. The effect of the remedial measures (i.e. installation of awnings, misting of the buildings, etc.) allegedly taken by Defendants on the data collected between July 15, 2013 and August 5, 2013. 2. Whether it is possible for the Court to isolate the data collected before remedial measures were allegedly taken. The Court granted plaintiffs leave to file one or more motions, related to the evidentiary and discovery issues discussed during the pretrial conference, by 12:00 p.m. on Friday, August 2, 2013. The Parties shall submit separate bench books of exhibits to the Court by 12:00 p.m. on Friday, August 2, 2013. The bench books shall also include an exhibit list and witness list. Counsel may also submit the bench books on disk. Counsel shall report to Courtroom 2 at 8:15 a.m. on Monday, August 5, 2013. (PJH) (Entered: 08/01/2013)
56 SEALED ORDER granting 47 MOTION for Writ of Habeas Corpus ad testificandum filed by James Magee, 45 MOTION for Writ of Habeas Corpus ad testificandum filed by Elzie Ball, 46 MOTION for Writ of Habeas Corpus ad testificandum filed by Nathaniel Code. Signed by Chief Judge Brian A. Jackson on 08/04/2013. (NLT) (Entered: 08/01/2013)
58 SEALED DOCUMENT Return on Service on Order and Writ to the Warden at LSP − Served on 08/02/2013.. (Attachments: # 1 Return)(NLT) (Entered: 08/02/2013)
59 Brief regarding Remedial Measures. (Attachments: # 1 Exhibit, # 2 Exhibit)(Wilson, Jacqueline) (Attachment 1 replaced on 8/2/2013) (SMG). (Attachment 2 replaced on 8/2/2013) (SMG). (Entered: 08/02/2013)
60 MEMORANDUM in Opposition to 55 MOTION to Request Judicial Notice of Administrative Prison Regulations and Louisiana Laws Requiring Climate Control filed by All Defendants. (Wilson, Jacqueline) (Entered: 08/02/2013)
61 Plaintiffs' Brief on the Reliability of USRM Data by Elzie Ball, Nathaniel Code, James Magee. (Montagnes, Mercedes) Modified to edit text on 8/2/2013 (SMG). (Entered: 08/02/2013)
62 First MOTION and Incorporated Memorandum for Evidentiary Sanctions Against Defendants Re: Costs of Air Conditioning and Balance of Harms to Defendants from Injunctive Relief Sought by Plaintiffs by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6A, # 7 Exhibit 6B, # 8 Exhibit 7, # 9 Exhibit 8A, # 10 Exhibit 8B)(Montagnes, Mercedes) Modified to edit text on 8/2/2013 (SMG). (Entered: 08/02/2013)
63 MOTION and Incorporated Memorandum in Support of a Motion for Imposition of Sanctions for Defendants' Spoliation of Evidence by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3A, # 4 Exhibit 3B, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6A, # 8 Exhibit 6B, # 9 Exhibit 6C, # 10 Exhibit

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6D, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11, # 16 Exhibit 12, # 17 Exhibit 13, # 18 Exhibit 14A, # 19 Exhibit 14B, # 20 Exhibit 14C, # 21 Exhibit 14D)(Montagnes, Mercedes) Modified to edit text on 8/2/2013 (SMG). Modified to correct spelling on 8/5/2013 (SMG). (Entered: 08/02/2013)
64 NOTICE of Statement of Interest by United States (Maraist, Catherine) (Entered: 08/02/2013)
65 MOTION to Enroll James L. Hilburn as Additional Attorney by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Wilson, Jacqueline) (Entered: 08/04/2013)
66 RESPONSE in Opposition to 63 MOTION and Incorporated Memorandum in Support of a Motion for Imposition of Sanctions for Defendants' Spoliation of Evidence filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Wilson, Jacqueline) Modified to edit text on 8/5/2013 (SMG). (Entered: 08/04/2013)
67 ORDER granting 65 Motion to Enroll as Additional Counsel. Added attorney James L. Hilburn for defendants Louisiana Department of Public Safety and Corrections, James M. LeBlanc, Burl Cain and Angie Norwood. Signed by Magistrate Judge Stephen C. Riedlinger on 8/5/2013. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 08/05/2013)
75 Minute Entry. Evidentiary hearing on Plaintiffs Motion forInjunctive Relief and trial on the merits held before Chief Judge Brian A. Jackson held on 8/5/2013. Counsel for the United States corrects error on page 3 of documents entitled Statement of Interest filed by United States (doc. 64). Court grants the Defendants Motion to Strike (doc. 16), as to temperature data only, the Defendants Motion for Leave to File Supplemental Affidavits in Opposition to Motion for Preliminary Injunction (doc. 22), and the Defendants Motion for Expedited Hearing on Motion for Leave to File Supplemental Affidavits (doc. 23). The Court hears oral argument on the Plaintiffs Motion to Request Judicial Notice of Administrative Prison Regulations and Louisiana Laws Regarding Climate Control (doc. 55), Plaintiffs Motion and Incorporated Memorandum for Evidentiary Sanctions Against Defendants re: costs of Air Conditioning and Balance of Harms to Defendants from Injunctive Relief Sought by Plaintiffs (doc. 62), and the Plaintiffs Motion and Incorporated Memorandum in Support of a Motion for Imposition of Sanctions for Defendants Spoliation of Evidence (doc. 63). The Court defers ruling on the Plaintiffs Motion to Request Judicial Notice of Administrative Prison Regulations and Louisiana Law Requiring Climate Control (doc. 55), and the Plaintiffs Motion and Incorporated Memorandum in Support of a Motion for Imposition of Sanctions for Defendants Spoliation of Evidence (doc. 63). Counsel for defendants shall file an opposition to the Plaintiffs Motion and Incorporated Memorandum for Evidentiary Sanctions Against Defendants re: costs. of Air Conditioning and Balance of Harms to Defendants from Injunctive Relief Sought by Plaintiffs (doc. 62) by 5:00 p.m. on Tuesday, August 6, 2013. The Court imposes an order of sequestration. Counsel present opening statements to the Court. Parties stipulate that not all plaintiffs will be present for the duration of the trial. Nathaniel Code, Jr. Frank Thompson, Brandy Perry, Elzie Ball, Angela Norwood, David Garon are sworn and testify on behalf of Plaintiff. Exhibits filed. Matter will continue on 8/6/2013 at 9:30 a.m.(Court Reporter C. Smith−Neely.) (PJH) (Entered: 08/28/2013)
68 RESPONSE in Opposition to 62 First MOTION and Incorporated Memorandum for Evidentiary Sanctions Against Defendants Re: Costs of Air Conditioning and Balance of Harms to Defendants from Injunctive Relief Sought by Plaintiffs filed by All Defendants. (Jones, Carlton) (Entered: 08/06/2013)
76 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Evidentiary Hearing on Pltfs Motion for Injunctive Relief and trial on the merits held on 8/6/2013. Stipulation as to the testimony of Secretary J ames LeBlanc and Warden Richard Peabody is read into the record. Disk containing USRM Data (P137) is filed into the record. The following witnesses are sworn and testify on behalf of the Plaintiffs. Dr. Susi Vassallo James J. Balsamo, Jr. Mary Katherine McCarthy Warden Burl Cain James C. Magee Exhibits P98,CV of James J. Balsamo, Jr. (0001−0031 only), and

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P138 (disk containing charts) are admitted. The Court defers ruling on the admission of exhibit P99, Expert Report of Dr. Vassallo and exhibit P98 (0032 − 0304) the Expert Report of James J. Balsamo, Jr. Plaintiffs rests. Counsel for the Defendants moves for dismissal under Rule 52. For reasons stated herein, the Court defers ruling on the Defendants Motion for Dismissal at this time. The following witnesses are sworn and testify on behalf of defendants: Stephen Trauth John M. Grimes, III Henry Eyre, III Dr. Raman Singh Exhibit D1, CV of John M. Grimes, III is admitted. The evidentiary hearing on the Plaintiffs Motion for Injunctive Relief and trial on the merits will resume on Wednesday, August 7, 2013 at 8:00 a.m., in Courtroom 2. (Court Reporter C. Smith−Neely.) (Main Document 76 replaced on 8/29/2013) (PJH). (PJH). Modified on 8/29/2013 to edit text (PJH). Modified on 8/29/2013 to edit text (JDL). (Entered: 08/28/2013)
77 Minute Entry for proceedings held before Chief Judge Brian A. Jackson on 8/7/2013: Evidentiary hearing on Plaintiffs Motion for Injunctive Relief and trial on the merits continues in this matter from August 6, 2013. James M. LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections, is sworn and testifies on behalf of the Defendants. Angie Norwood, having been previously sworn, testifies on behalf of Defendants. Dr. Hal David Macmurdo is sworn and testifies on behalf of Defendants. Exhibits filed. Defts rest. Proffer read in the record by Counsel for the Plaintiffs. Pltfs rest in rebuttal. The Court admits all expert reports into evidence. Counsel presents closing arguments to the Court. Counsel shall file Supplemental and Proposed Findings Of Fact and Conclusions Of Law, limited to 5 pages in length, by August 16, 2013 at 5:00 p.m. The Court defers its ruling on Plaintiffs Application For Preliminary Injunction at this time. For reasons stated herein, the Court denies Plaintiffs Motion to Enjoin Defendants and Their Staff From Retaliation Against Plaintiffs In Any Manner For Filing This Complaint.(Court Reporter C. Smith−Neely.) (PJH) (Entered: 08/30/2013)
69 Notice to Counsel: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)Telephone Conference set for 8/9/2013 at 11:00 AM (CST) before Chief Judge Brian A. Jackson. The Court will initiate the call to counsel.(PJH) (Entered: 08/08/2013)
80 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Telephone Conference held on 8/9/2013. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) Modified on 9/17/2013 to add text (JDL). (Entered: 09/16/2013)
70 Joint STIPULATION Regarding Tier Measurements by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angie Norwood. (Wilson, Jacqueline) (Entered: 08/16/2013)
71 Proposed Findings of Fact by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angie Norwood. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Wilson, Jacqueline) (Entered: 08/16/2013)
72 Notice of Filing by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Attachment Proposed Findings of Fact and Conlcusions of Law, # 2 Attachment Joint Stipulations, # 3 Attachment Redacted expert report of James Balsamo, # 4 Attachment Email correspondence re Balsamo report, # 5 Attachment Email correspondence re Balsamo report, # 6 Attachment Email correspondence re Balsamo report, # 7 Attachment Email correspondence re Balsamo report, # 8 Attachment Email correspondence re Balsamo report, # 9 Attachment Email correspondence re Balsamo report, # 10 Attachment Email correspondence re Balsamo report, # 11 Attachment Email correspondence re Balsamo report, # 12 Attachment Email correspondence re Balsamo report, # 13 Attachment Email correspondence re Balsamo report)(Montagnes, Mercedes) Modified to edit text on 8/19/2013 (SMG). (Entered: 08/16/2013)
73 MOTION for Leave to File Reply to Defendants Opposition to Motion for Evidentiary Sanctions Against Defendants RE: Cost of Air Conditioning and Balance of Harms by All Plaintiffs. (Attachments: # 1 Proposed Pleading;)(Montagnes, Mercedes) (Entered: 08/20/2013)

08/20/2013 09/03/2013 09/06/2013 09/16/2013 09/17/2013 10/10/2013
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74 MOTION for Leave to File Reply to Defendants Opposition to Motion for Imposition of Sanctions for Defendants Spoliation of Evidence by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Montagnes, Mercedes) (Entered: 08/20/2013)
78 MEMORANDUM in Opposition to 72 Plaintiff's Attempt to Introduce Expert Report of James Balsamo filed by All Defendants. (Attachments: # 1 Exhibit)(Wilson, Jacqueline) Modified to edit text on 9/3/2013 (SMG). (Entered: 09/03/2013)
79 MOTION for Leave to Remove Awnings and Incorporated Memorandum by All Defendants. (Attachments: # 1 Exhibit, # 2 Proposed Pleading;)(Wilson, Jacqueline) Modified on 9/9/2013 to edit text (CGP). (Entered: 09/06/2013)
81 RESPONSE in Opposition to 79 MOTION for Leave to Remove Awnings filed by All Plaintiffs. (Montagnes, Mercedes) (Entered: 09/16/2013)
82 ORDER denying 79 MOTION for Leave to Remove Awnings and Incorporated Memorandum. Signed by Chief Judge Brian A. Jackson on 9/17/2013. (LLH) (Entered: 09/17/2013)
83 ORDER granting 73 MOTION for Leave to File Reply to Defendants Opposition to Motion for Evidentiary Sanctions Against Defendants RE: Cost of Air Conditioning and Balance of Harms filed by Nathaniel Code, Elzie Ball, James Magee and granting 74 MOTION for Leave to File Reply to Defendants Opposition to Motion for Imposition of Sanctions for Defendants Spoliation of Evidence filed by Nathaniel Code, Elzie Ball, James Magee. The Clerk of Court shall enter both the reply memoranda into the record. Signed by Chief Judge Brian A. Jackson on 10/9/2013. (LLH) (Entered: 10/10/2013)
84 REPLY to 68 Response in Opposition to 62 First MOTION and Incorporated Memorandum for Evidentiary Sanctions Against Defendants Re: Costs of Air Conditioning and Balance of Harms to Defendants from Injunctive Relief Sought by Plaintiffs, filed by Elzie Ball, Nathaniel Code, James Magee. (LLH) (Entered: 10/10/2013)
85 REPLY to 66 Response in Opposition to 63 MOTION and Incorporated Memorandum in Support of a Motion for Imposition of Sanctions for Defendants' Spoliation of Evidence, filed by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(LLH) (Entered: 10/10/2013)
86 RULING AND ORDER... For reasons stated herein, IT IS ORDERED that Plaintiffs' Motion and Incorporated Memorandum to Request Judicial Notice of Administrative Prison Regulations and Louisiana Laws Requiring Climate Control (Doc. 55) is GRANTED. Signed by Chief Judge Brian A. Jackson on 12/19/2013. (PJH) (Entered: 12/19/2013)
87 RULING AND ORDER denying as moot 12 Plaintiffs' Motion for a Preliminary Injunction and granting in part and denying in part Plaintiffs' request for declaratory and injunctive relief. For the reasons stated herein; IT IS FURTHER ORDERED that Defendants shall immediately develop a plan to reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees Fahrenheit. IT IS FURTHER ORDERED that Defendants shall submit their plan to the Court no later than February 17, 2014 at 5:00 p.m. IT IS FURTHER ORDERED that Defendants shall immediately add Plaintiff James Magee to Angola's "Heat Precautions List." IT IS FURTHER ORDERED that Plaintiffs shall file a response to Defendants' proposed plan no later than March 10, 2014 at 5:00 p.m. IT IS FURTHER ORDERED that Plaintiffs and Defendants shall jointly or separately recommend candidates for appointment as Special Master no later than March 10, 2014 at 5:00 p.m. The parties' recommendations shall be filed into the record of this matter and shall set out the qualifications of the persons so recommended. IT IS FURTHER ORDERED that Plaintiffs and Defendants shall jointly or separately file a response to the United States Department of Justice's submission no later than March 10, 2014 at 5:00 p.m. IT IS FURTHER ORDERED that Plaintiffs are awarded reasonable attorneys' fees and costs. Plaintiffs shall file their motion for attorneys' fees and costs on a date to be fixed by the Court. IT IS FURTHER ORDERED that the Clerk of Court shall serve a copy

12/19/2013
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of this Ruling and Order on the United States Attorney for the Middle District of Louisiana and the Assistant Attorney General for the Civil Rights Division of the United States Department of Justice. Signed by Chief Judge Brian A. Jackson on 12/19/2013. (PJH) (Entered: 12/19/2013)
88 RULING AND ORDER granting in part and denying in part 62 63 Plaintiffs' Motions for Sanctions. Plaintiffs' Motions are GRANTED to the extent that they seek reimbursement of attorney's fees and costs. IT IS ORDERED that Defendants' SHALL REIMBURSE Plaintiffs the full value of all attorney's fees and costs associated with the evidentiary and discovery violations described in this Order. Plaintiff's Motions are DENIED to the extent that they seek additional relief. IT IS FURTHER ORDERED that Plaintiffs' shall file a motion for attorneys' fees and costs within 30 days of the date of this Order. IT IS FURTHER ORDERED that Defendants' counsel E. WADE SHOWS, AMY L. MCINNIS, and JACQUELINE B. WILSON SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED against each personally, under Fed. R. Civ. P. 37(c); M.D. La. LR83.2.4 and LR83.2.8; Louisiana Professional Conduct Rules related to candor to the tribunal and honesty and fair dealing to opposing counsel; and this Court's inherent powers. An order setting a date for a hearing on this Order to Show Cause shall follow. Signed by Chief Judge Brian A. Jackson on 12/19/2013. (PJH) (Entered: 12/19/2013)
Set/Reset Deadlines/Hearings: Defendants Plan is due no later than 5:00 pm on 2/17/2014. Plaintiffs Response to the Defendants Plan is due no later than 5:00 pm on 03/10/2014. Plaintiffs and Defendants shall jointly or separately recommend candidates for appointment as Special Master no later than 5:00 pm on 03/10/2014. Plaintiffs and Defendants shall jointly or separately file a response to the US Department of Justice's submission no later than 5:00 pm on 03/10/2014. Motion for Attorney's Fees shall be filed by 1/21/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry) (NLT) (Entered: 12/20/2013)
89 TRANSCRIPT REQUEST by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood for proceedings held on 8/5/2013−8/7/2013 before Judge Jackson.. (Wilson, Jacqueline) (Entered: 12/23/2013)
90 NOTICE of Service of Record Doc. 87 upon the Acting U.S Attorney for the Middle District of Louisiana (SMG) Modified on 1/6/2014 to edit the text (NLT). (Entered: 12/23/2013)
91 MOTION Entry of Final Judgment by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Proposed Final Judgment)(Wilson, Jacqueline) (Entered: 12/26/2013)
92 MOTION for Expedited Hearing on 91 MOTION Entry of Final Judgment by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Wilson, Jacqueline) (Entered: 12/26/2013)
93 RESPONSE in Opposition to 92 MOTION for Expedited Hearing on 91 MOTION Entry of Final Judgment filed by All Plaintiffs. (Montagnes, Mercedes) (Entered: 12/31/2013)
94 MOTION for Leave to File Reply Memorandum in Support of Defendants' Motion for Expedited Consideration of Motion for Entry of Final Judgment Pursuant to FRCP 58(d) by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order, # 3 Proposed Pleading; Reply Brief)(Wilson, Jacqueline) Modified to edit docket entry relationship and text on 1/2/2014 (SMG). (Entered: 12/31/2013)
95 ORDER denying 92 Motion for Expedited Consideration of Motion for Entry of Final Judgment and denying as moot 94 MOTION for Leave to File Reply Memorandum in Support of Defendants' Motion for Expedited Consideration of Motion for Entry of Final Judgment Pursuant to FRCP 58(d). The plaintiffs shall file a response to Defendants' Motion for Expedited Consideration of Motion for Entry of Final Judgment Pursuant to FRCP 58(d)no later than 01/16/2014. Signed by Chief Judge Brian A. Jackson on 01/06/2014. (NLT) (Entered: 01/06/2014)
Set/Reset Deadlines as to 91 MOTION Entry of Final Judgment . (NLT) (Entered: 01/06/2014)

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96 Return on Case 13−368 Certified Mail Return Receipt re: Ruling #87. (CGP) (Entered: 01/07/2014)
97 MOTION to Stay Pending Appeal by All Defendants. (Attachments: # 1 Memorandum in Support)(Jones, Carlton) (Entered: 01/13/2014)
98 MOTION for Expedited Consideration of 97 MOTION to Stay Pending Appeal by All Defendants. (Jones, Carlton) Modified on 1/14/2014 to edit text (JDL). (Entered: 01/13/2014)
99 RESPONSE in Opposition to 91 MOTION Entry of Final Judgment filed by All Plaintiffs. (Montagnes, Mercedes) (Entered: 01/16/2014)
100 RULING AND ORDER granting 98 Motion for Expedited Consideration and denying 97 Motion to Stay Pending Appeal. Signed by Chief Judge Brian A. Jackson on 01/17/2014. (CGP) (Entered: 01/17/2014)
101 ORDER setting EVIDENTIARY HEARING. IT IS ORDERED that Defendants' counsel, Mr. Edward Wade Shows, Ms. Amy L. McInnis, and Ms. Jacqueline B. Wilson SHOW CAUSE on February 20, 2014 at 2:00 p.m. in Courtroom 2 as to why SANCTIONS should not be imposed against each personally, pursuant to the Federal Rules of Civil Procedure, Local Rules of the United States District Court for the Middle District of Louisiana, Louisiana Rules of Professional Conduct, and/or this Court's inherent powers. See Docs. 87, 88. Possible SANCTIONS include, but are not limited to, reprimand, ethics training, suspension, disbarment, and/ or the payment of attorneys' fees to Plaintiffs' counsel. Signed by Chief Judge Brian A. Jackson on 1/17/2014. (PJH) (Entered: 01/17/2014)
102 MOTION to Enroll Michael A. Patterson, S. Brooke Barnett−Bernal and J. Lane Ewing, Jr. as Attorney And Re−Set Show Cause Hearing by Edward Wade Shows, Amy L McInnis, Jacqueline B Wilson. (Attachments: # 1 Attachment)(Barnett−Bernal, S.) Added MOTION to Re−Set Show Cause Hearing for a on 1/21/2014 (JDL). (Entered: 01/17/2014)
103 NOTICE OF APPEAL to the USCA for the 5th Circuit of 87 Ruling and Order on Motion for Preliminary Injunction, by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. Filing fee $ 505, receipt number 053N−1037089. (Hilburn, James) Modified on 1/21/2014 to edit text (jdl) (Entered: 01/21/2014)
104 MOTION to Set Attorney Fees and Costs Regarding Sanctions Pursuant to Rule 37(A)(5)(A) and This Court's 88 Order by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Affidavit, # 3 Attachment, # 4 Attachment, # 5 Attachment, # 6 Attachment, # 7 Attachment, # 8 Attachment, # 9 Affidavit, # 10 Attachment, # 11 Affidavit, # 12 Attachment, # 13 Affidavit, # 14 Affidavit, # 15 Affidavit, # 16 Attachment, # 17 Attachment, # 18 Attachment, # 19 Attachment, # 20 Attachment, # 21 Attachment)(Montagnes, Mercedes) (Attachment 17 replaced on 1/22/2014) (JDL). Modified on 1/22/2014 to correct document orientation and edit text (JDL). (Entered: 01/21/2014)
105 MOTION for Status Conference by Edward Wade Shows. (Attachments: # 1 Attachment)(Barnett−Bernal, S.) (Entered: 01/22/2014)
106 ORDER granting 102 Motion to Enroll as Counsel of Record and Motion to Re−Set Show Cause Hearing. The Evidentiary Hearing in this matter is CONTINUED and RESET to 3/7/2014 at 09:30 AM in Courtroom 2. Signed by Chief Judge Brian A. Jackson on 01/22/2014. (CGP) (Entered: 01/22/2014)
107 RULING AND ORDER denying as moot 105 Motion for Status Conference. To repeat, The Show Cause Hearing scheduled for 3/7/2014 shall proceed in accordance with U.S. Fifth Circuit precedent and this Court's Local Rules. Signed by Chief Judge Brian A. Jackson on 1/28/2014. (LLH) (Entered: 01/30/2014)
108 MOTION to Re−Set Show Cause Hearing (Barnett−Bernal, S.) Modified on 1/31/2014 to edit text (JDL). (Entered: 01/31/2014)
109 MOTION for Guidance From The Court by Edward Wade Shows. (Attachments: # 1 Attachment)(Barnett−Bernal, S.) Modified to edit text on 2/4/2014 (SMG). (Entered:

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02/04/2014)
110 MOTION to Enroll LaToya D. Jordan as Additional Attorney by Edward Wade Shows. (Attachments: # 1 Attachment)(Barnett−Bernal, S.) (Entered: 02/06/2014)
MOTION(S) REFERRED: 110 MOTION to Enroll LaToya D. Jordan as Additional Attorney . This motion is now pending before the USMJ. (SMG) (Entered: 02/06/2014)
111 ORDER granting 110 Motion to Enroll Additional Counsel of Record for Shows Attorneys. Added attorney LaToya D. Jordan for Amy L. McInnis, Edward Wade Shows and Jacqueline B. Wilson. Signed by Magistrate Judge Stephen C. Riedlinger on 2/6/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 02/06/2014)
112 MOTION for Extension of Time Response to Plaintiffs' Motion for Attorneys' Fees and Costs by All Defendants. (Hilburn, James) (Entered: 02/11/2014)
113 MOTION to Take Deposition from Magistrate Judge Stephen Riedlinger by Edward Wade Shows. (Attachments: # 1 Attachment, # 2 Exhibit)(Barnett−Bernal, S.) (Attachment 1 replaced on 2/11/2014 to correct document format) (JDL). (Entered: 02/11/2014)
114 RULING AND ORDER granting 108 Motion to Re−Set Show Cause Hearing. The Evidentiary Hearing is reset for 3/12/2014 at 08:00 AM in Courtroom 2 before Chief Judge Brian A. Jackson. No further continuances will be allowed. Signed by Chief Judge Brian A. Jackson on 02/11/2014. (NLT) (Entered: 02/11/2014)
115 MEMORANDUM in Opposition to 104 MOTION to Set Attorney Fees and Costs Regarding Sanction Pursuant to Rule 37(A)(5)(A) and This Court's 88 Order filed by All Defendants. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Hilburn, James) (Entered: 02/11/2014)
116 ORDER denying as moot 112 Motion for Enlargement of Time to File Response to Plaintiff's Motion for Attorney's Fees and Costs. Signed by Chief Judge Brian A. Jackson on 02/12/2014. (CGP) (Entered: 02/13/2014)
117 RULING AND ORDER denying 109 Motion for Guidance from the Court. Signed by Chief Judge Brian A. Jackson on 02/13/2014. (NLT) (Entered: 02/14/2014)
118 NOTICE of Submission of Heat Remediation Plan by Burl Cain, James M. LeBlanc, Angela Norwood re 87 Order on Motion for Preliminary Injunction, (Attachments: # 1 Exhibit "A" Frank Thompson, PE, CV, # 2 Exhibit "B" Remediation Plan with Exhibits, # 3 Exhibit "C" ACA Standard for Showers)(Hilburn, James) (Attachment 1 replaced on 2/18/2014 to correct page orientation) (JDL). (Entered: 02/17/2014)
119 Letter dated 02/13/2014 from Lyle W. Cayce, Clerk − U.S. Court of Appeals for the 5th Circuit to Counsel or Parties Listed Re: Motion to Stay is Denied (CGP) (Entered: 02/18/2014)
120 MOTION for Leave to File Reply by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Reply to Motion for Sanctions)(Montagnes, Mercedes) (Entered: 02/20/2014)
Record on Appeal Electronically Certified. regarding 103 Notice of Appeal to the USCA for the 5th Circuit. US Court of Appeals notified of certification. (TMR) (Entered: 02/24/2014)
121 ORDER granting 120 MOTION for Leave to File Reply filed by Nathaniel Code, Elzie Ball, James Magee. Defendants shall file their sur−reply memorandum, if any, no later than 03/07/2014. Defendants' memorandum shall not exceed five pages. Signed by Chief Judge Brian A. Jackson on 02/24/2014. (CGP) (Entered: 02/24/2014)
Set/Reset Deadlines as to 104 MOTION to Set Attorney Fees and Costs Regarding Sanction Pursuant to Rule 37(A)(5)(A) and This Court's 88 Order. Replies due by 3/7/2014. (CGP) (Entered: 02/24/2014)
122 REPLY in Support of 104 MOTION to Set Attorney Fees and Costs Regarding Sanction Pursuant to Rule 37(A)(5)(A) and this Court's 88 Order filed by Elzie Ball,

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Nathaniel Code, James Magee. (CGP) (Entered: 02/24/2014)
123 REQUEST by All Plaintiffs for Record on Appeal regarding 103 Notice of Appeal to the USCA for the 5th Circuit,. (Vora, Nilay) (Entered: 02/25/2014)
124 Transmitted Electronic Record on Appeal to Counsel of Record regarding 103 Notice of Appeal to the USCA for the 5th Circuit. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request (Attachments: # 1 Certified Appeal Record, Docket Sheet, # 2 Certified Appeal Record Vol. 1, # 3 Certified Appeal Record Vol. 2, # 4 Certified Appeal Record Vol. 3, # 5 Certified Appeal Record Vol. 4, # 6 Certified Appeal Record Vol. 5, # 7 Certified Appeal Record Vol. 6, # 8 Certified Appeal Record Vol. 7, # 9 Certified Appeal Record Vol. 8, # 10 Certified Appeal Record Vol. 9, # 11 Certified Appeal Record Vol. 10, # 12 Certified Appeal Record Vol. 11, # 13 Certified Appeal Record Vol. 12, # 14 Certified Appeal Record Vol. 13, # 15 Certified Appeal Record Vol. 14, # 16 Certified Appeal Record Vol. 15, # 17 Certified Appeal Record Vol. 16, # 18 Certified Appeal Record Vol. 17, # 19 Certified Appeal Record Vol. 18, # 20 Certified Appeal Record Vol. 19)(TMR) (Entered: 02/26/2014)
125 ORDER granting 113 Request for the Testimony of Magistrate Judge Stephen C. Riedlinger, to be taken 3/6/2014 at 10:00 a.m., Russell B. Long Federal Bldg. Signed by Magistrate Judge Stephen C. Riedlinger on 2/27/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 02/27/2014)
126 Sur−Reply in Opposition to 104 MOTION to Set Attorney Fees and Costs Regarding Sanction Pursuant to Rule 37(A)(5)(A) and This Court's 88 Order filed by All Defendants. (Hilburn, James) Modified to edit text on 3/7/2014 (SMG). (Entered: 03/07/2014)
127 Notice to Counsel: Evidentiary Hearing on the Order to Show Cause is reset for 3/12/2014 at 09:30 AM in Courtroom 2 before Chief Judge Brian A. Jackson. THIS IS A TIME CHANGE ONLY. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 03/07/2014)
128 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Bench Trial hearing before Judge Chief Brian A. Jackson held on 8−5−13. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

03/10/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 3/28/2014. Redacted Transcript Deadline set for 4/7/2014. Release of Transcript Restriction set for 6/5/2014. (Smith−Neely, Clare) (Entered: 03/10/2014)
129 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Bench Trial hearing before Judge Chief Brian A. Jackson held on 8−6−13. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 3/28/2014. Redacted Transcript Deadline set for 4/7/2014. Release of Transcript Restriction set for 6/5/2014. (Smith−Neely, Clare) (Entered: 03/10/2014)

03/10/2014 130 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Bench Trial hearing before Judge Chief Brian A. Jackson held on 8−7−13. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

03/10/2014 03/10/2014 03/10/2014
03/10/2014 03/10/2014
03/11/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 3/28/2014. Redacted Transcript Deadline set for 4/7/2014. Release of Transcript Restriction set for 6/5/2014. (Smith−Neely, Clare) (Entered: 03/10/2014)
131 RESPONSE to 118 Defendants' Submission of Heat Remediation Plan filed by All Plaintiffs. (Montagnes, Mercedes) Modified to edit text on 3/11/2014 (SMG). (Entered: 03/10/2014)
132 RESPONSE to 64 Statement of Interest of the United States filed by All Plaintiffs. (Montagnes, Mercedes) Modified to edit text on 3/11/2014 (SMG). (Entered: 03/10/2014)
133 NOTICE of Plaintiffs' Recommended Candidates for Appointment as Special Master by Elzie Ball, Nathaniel Code, James Magee (Attachments: # 1 Attachment Lopes CV, # 2 Attachment Medina CV, # 3 Attachment Morrison CV, # 4 Attachment Quigley CV, # 5 Attachment Schlanger CV)(Montagnes, Mercedes) Modified to edit text on 3/11/2014 (SMG). (Entered: 03/10/2014)
134 Defendants' Response to 64 Statement of Interest of the United States by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood re 87 Order on Motion for Preliminary Injunction (Hilburn, James) Modified to edit text on 3/11/2014 (SMG). (Entered: 03/10/2014)
135 NOTICE of Defendants' Recommendation of Candidates for Special Master by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood re 87 Order on Motion for Preliminary Injunction,,,,,,, (Attachments: # 1 Exhibit Ex. B, C.V. of Judge Gaidry, # 2 Exhibit Ex. C, C.V. of Ms. Ellis, # 3 Exhibit Ex. D, C.V. of Mr. Hebert)(Hilburn, James) (Entered: 03/10/2014)
136 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Motion for Preliminary Injunction hearing before Judge Chief Brian A. Jackson held on 7−2−13. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

03/13/2014 03/13/2014 03/13/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 3/31/2014. Redacted Transcript Deadline set for 4/8/2014. Release of Transcript Restriction set for 6/6/2014. (Smith−Neely, Clare) (Entered: 03/11/2014)
137 MOTION to Remove Three of Defendants' Recommended Candidates for Special Master by All Plaintiffs. (Attachments: # 1 Memorandum in Support)(Montagnes, Mercedes) Modified on 3/14/2014 to edit text (JDL). (Entered: 03/13/2014)
138 MOTION for Leave to File Notice of Errata by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Notice of Errata, # 2 Exhibit Exhibit 1)(Montagnes, Mercedes) (Entered: 03/13/2014)
139 MOTION for Leave to Remove Three of Plaintiffs' Special Master Candidates by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections,

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Angela Norwood. (Attachments: # 1 Memorandum in Support)(Hilburn, James) (Entered: 03/13/2014)
140 MEMORANDUM in Opposition to 139 MOTION for Leave to Remove Three of Plaintiffs' Special Master Candidates filed by All Plaintiffs. (Montagnes, Mercedes) (Entered: 03/14/2014)
141 ORDER granting 138 MOTION for Leave to File Notice of Errata filed by Nathaniel Code, Elzie Ball, James Magee. The Clerk of Court shall DOCKET Plaintiff's Notice of Errata Regarding Plaintiffs Motion to Set Attorneys' Fees and Costs Pursuant to Rule 37(a)(5)(A) and this Court's Order, and create a docket entry relationship between it and Plaintiffs Motion to Set Attorneys' Fees and Costs Pursuant to Rule 37(a)(5)(A) and this Court's Order 104 . Signed by Chief Judge Brian A. Jackson on 03/14/2014. (CGP) (Entered: 03/14/2014)
142 NOTICE of Errata Regarding 104 Plaintiffs Motion to Set Attorneys' Fees and Costs Pursuant to Rule 37(A)(5)(A) and This Court's 88 Order by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Exhibit 1)(CGP) (Entered: 03/14/2014)
143 ORDER granting 137 Plaintiffs' MOTION to Remove Three of Defendants' Recommended Candidates for Special Master and 139 Defendants' MOTION to Remove Three of Plaintiffs' Recommended Candidates for Special Master. The following individuals remain on the list of proposed candidates for appointment as Special Master: (1) Isabel Medina, (2) William Quigley, (3) Paul Hebert. The Court shall issue further orders regarding the appointment of a Special Master, Defendants' proposed plan, Plaintiffs' response, and implementation of the plan at a later date. Signed by Chief Judge Brian A. Jackson on 03/14/2014. (CGP) Modified on 3/17/2014 to edit the text (NLT). (Entered: 03/14/2014)
144 MOTION for Leave to File Reply Memorandum in Support of Motion to Remove Three of Plaintiffs' Recommended Candidates for Special Master by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. (Attachments: # 1 Memorandum in Support Reply Memorandum in Support)(Hilburn, James) (Entered: 03/14/2014)
145 ORDER denying as moot Defendants' 144 MOTION for Leave of Court to File Reply Memorandum to Remove Three of Plaintiffs' Recommended Candidates for Special Master. Signed by Chief Judge Brian A. Jackson on 03/17/2014. (CGP) (Entered: 03/18/2014)
146 MOTION to Compel Payment of Expert Fees by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15)(Montagnes, Mercedes) Modified on 3/25/2014 to edit text (JDL). (Entered: 03/25/2014)
Supplemental #2, Record on Appeal Electronically Certified, regarding 103 Notice of Appeal to the USCA for the 5th Circuit. US Court of Appeals notified of certification. (TMR) (Entered: 03/27/2014)
Supplemental #1 Record on Appeal Electronically Certified. regarding 103 Notice of Appeal to the USCA for the 5th Circuit,. US Court of Appeals notified of certification. (TMR) (Entered: 03/27/2014)
147 REQUEST by All Defendants for Record on Appeal regarding 103 Notice of Appeal to the USCA for the 5th Circuit,. (Wilson, Jacqueline) (Entered: 04/01/2014)
148 Transmitted Electronic Record on Appeal to Counsel of Record regarding 103 Notice of Appeal to the USCA for the 5th Circuit,. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (Attachments: # 1 Certified Appeal Record Supp #1, Docket Sheet, # 2 Certified Appeal Record Supp #1, Vol. 1, # 3 Certified Appeal Record Supp #1, Transcript 8−5−13, # 4 Certified Appeal Record Supp #1, Transcript 8−6−13, # 5 Certified Appeal Record Supp #1, Transcript 8−7−13, # 6 Certified Appeal Record Supp #2, Docket Sheet, # 7 Certified Appeal Record Supp #2, Transcript 7−2−13)(TMR) (Entered: 04/01/2014)

04/04/2014 04/06/2014

149 TRANSCRIPT REQUEST for Evidentiary Hearing on the Order to Show Cause by Elzie Ball, Nathaniel Code, James Magee for proceedings held on 3/12/14 before Judge Hon. Brian A. Jackson.. (Vora, Nilay) (Entered: 04/04/2014)
150 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Show Cause Hearing hearing before Judge Chief Brian A. Jackson held on 3−12−14. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

04/10/2014
04/10/2014 04/15/2014
04/18/2014 04/22/2014 04/28/2014 04/28/2014 04/28/2014
04/30/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/24/2014. Redacted Transcript Deadline set for 5/5/2014. Release of Transcript Restriction set for 7/2/2014. (Smith−Neely, Clare) (Entered: 04/06/2014)
151 ORDER SETTING EVIDENTIARY HEARING: The parties shall appear before the undersigned for an EVIDENTIARY HEARING on 04/30/2014 at 10:00 a.m. in Courtroom 2. The parties shall be prepared to present oral argument and/or evidence, including testimonial evidence, regarding the remaining proposed candidates for appointment as Special Master. Signed by Chief Judge Brian A. Jackson on 04/10/2014. (CGP) (Entered: 04/10/2014)
Set/Reset Deadlines/Hearings: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry) Evidentiary Hearing set for 4/30/2014 at 10:00 AM in Courtroom 2 before Chief Judge Brian A. Jackson. (CGP) (Entered: 04/10/2014)
152 MEMORANDUM in Opposition to 146 MOTION to Compel Payment of Expert Fees filed by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. (Attachments: # 1 Exhibit Exhibit A − 10.8.13 letter, # 2 Exhibit Exhibit B − 3.8.14 email, # 3 Exhibit Exhibit C − Vassallo invoice, # 4 Exhibit Exhibit D − Vassallo contract, # 5 Exhibit Exhibit E − Balsamo invoice, # 6 Exhibit Exhibit F − Balsamo contract, # 7 Exhibit Exhibit G − Garon invoice, # 8 Exhibit Exhibit H − Garon contract)(Hilburn, James) (Entered: 04/15/2014)
153 MOTION for Leave to File Reply to 152 Opposition to 146 MOTION to Compel Payment of Expert Fees filed by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Reply to Opposition, # 2 Exhibit Medlock Declaration)(Compa, Elizabeth) Modified on 4/21/2014 to edit text (JDL). (Entered: 04/18/2014)
154 MOTION for Leave to File Supplemental Authority to Motion to Set Attorneys' Fees (Rec. Doc. 104) by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Attachment)(Montagnes, Mercedes) (Entered: 04/22/2014)
155 MOTION to Enroll Grant J. Guillot as Additional Attorney by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. (Attachments: # 1 Proposed Pleading; Order)(Shows, Edmond) (Entered: 04/28/2014)
MOTION(S) REFERRED: 155 MOTION to Enroll Grant J. Guillot as Additional Attorney. This motion is now pending before the USMJ. (JDL) (Entered: 04/28/2014)
156 ORDER granting 155 Motion to Enroll as Additional Counsel of Record. Added attorney Grant Joseph Guillot for Burl Cain, James M. LeBlanc, Angela Norwood, and Louisiana Department of Public Safety and Corrections. Signed by Magistrate Judge Stephen C. Riedlinger on 4/28/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 04/28/2014)
157 ORDER granting 153 MOTION for Leave to File Reply to Defendants' Opposition to Motion to Compel Payment of Expert Fees and 154 MOTION for Leave to File Supplemental Authority. Signed by Chief Judge Brian A. Jackson on 04/30/2014. (CGP) (Entered: 04/30/2014)

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05/02/2014 05/05/2014
05/06/2014 05/06/2014 05/09/2014 05/09/2014 05/09/2014

158 SUPPLEMENTAL AUTHORITY regarding 104 MOTION to Set Attorney Fees and Costs Regarding Sanction Pursuant to Rule 37(A)(5)(A) and this Court's 88 Order. (Attachments: # 1 Attachment 1)(CGP) (Entered: 04/30/2014)
159 REPLY to 152 Memorandum in Opposition to 146 MOTION to Compel Payment of Expert Fees filed by Elzie Ball, Nathaniel Code, James Magee. (Attachments: # 1 Exhibit 1)(CGP) (Entered: 04/30/2014)
168 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Evidentiary Hearing held on 4/30/2014. This matter came on this day for evidentiary hearing regarding the remaining proposed candidates for appointment as Special Master (docs. 133, 135, and 151). The Court will defer ruling on the Motion for Entry of Final Judgment filed by Defendants (doc. 91), the Motion to Set Attorney Fees and Costs Regarding Sanctions Pursuant to Rule 37 (A)(5)(A) and This Courts Order (doc. 88) filed by the Plaintiffs (doc. 104), and the Motion to Compel Payment Of Expert Fees filed by the Plaintiffs (doc. 146). Plaintiffs Motions for Leave to File Reply to Opposition to Motion to Compel Payment of Expert Fees (doc. 153) and Motionfor Leave to File Supplemental Authority to Motion to Set Attorneys Fees (doc.154) is granted. Counsel presents oral argument to the Court. Dr. William Quigley and Dr. Marie Isabelle Medina are sworn and testifies on behalf of Plaintiffs. Exhibits filed. Paul F. Hebert, Esq. is sworn and testifies on behalf of the Defendants. Counsel presents closing arguments to the Court. The Court defers ruling on appointment of Special Master at this time. Written ruling to be rendered within the coming days.(Court Reporter Recorded.) (PJH) (Entered: 05/19/2014)
160 TRANSCRIPT REQUEST by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood for proceedings held on 4/30/2014 before Judge Brian A. Jackson.. (Guillot, Grant) (Entered: 05/02/2014)
161 MOTION for Leave to File Reply Memorandum in Response to Plaintiffs' Supplemental Authority Regarding Plaintiffs' Motion to Set Attorneys' Fees and Costs Pursuant to Rule 37(A)(5)(a) and This Court's Order by All Defendants. (Attachments: # 1 Proposed Pleading; Reply Memorandum in Response to Plaintiffs' Supplemental Authority Regarding Plaintiffs' Motion to Set Attorneys' Fees and Costs Pursuant to Rule 37(A)(5)(a) and This Court's Order, # 2 Proposed Pleading; Order)(Guillot, Grant) (Entered: 05/05/2014)
162 ORDER granting 161 MOTION for Leave to File Reply Memorandum in Response to Plaintiffs' Supplemental Authority Regarding Plaintiffs' Motion to Set Attorneys' Fees and Costs Pursuant to Rule 37(A)(5)(a) and this Court's Order. Signed by Chief Judge Brian A. Jackson on 05/06/2014. (CGP) (Entered: 05/06/2014)
163 REPLY MEMORANDUM in Response to 158 Supplemental Authority regarding 104 MOTION to Set Attorney Fees and Costs Regarding Sanction Pursuant to Rule 37(A)(5)(A) and This Court's 88 Order, filed by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. (CGP) (Entered: 05/06/2014)
164 MOTION for Jacqueline Wilson to Withdraw as Attorney by All Defendants. (Wilson, Jacqueline) (Entered: 05/09/2014)
165 ORDER granting 164 Motion to Withdraw Counsel of Record. Jacqueline B. Wilson is withdrawn as attorney for the defendants. Signed by Magistrate Judge Stephen C. Riedlinger on 5/9/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 05/09/2014)
166 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings To Assign Special Master hearing before Judge Chief Brian A. Jackson held on 4−30−14. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

05/14/2014 05/22/2014 05/23/2014 05/23/2014 05/27/2014 05/29/2014 06/02/2014 06/03/2014
06/05/2014 06/05/2014 06/09/2014 06/10/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/27/2014. Redacted Transcript Deadline set for 6/6/2014. Release of Transcript Restriction set for 8/4/2014. (Smith−Neely, Clare) (Entered: 05/09/2014)
167 Memorandum dated 5/9/2014 from Clerk, USCA to Counsel or Parties Re: Order entered and the appellants' motion to suspend the briefing deadlines pending the district court's final orders on both the merits of this case and on the issue of the selection of Special Master is GRANTED. (JDL) (Entered: 05/14/2014)
169 NOTICE of Compliance by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood to 87 Order on Motion for Preliminary Injunction,,,,,,, (Attachments: # 1 Exhibit Redacted Heat Precautions List)(Guillot, Grant) (Attachment 1 replaced on 5/22/2014) (SMG). (Entered: 05/22/2014)
170 ORDER APPROVING DEFENDANTS' HEAT REMEDIATION PLAN: Defendants shall IMMEDIATELY implement the approved plan, including installing all necessary equipment. Signed by Chief Judge Brian A. Jackson on 05/23/2014. (CGP) (Entered: 05/23/2014)
171 ORDER CONDITIONALLY APPOINTING SPECIAL MASTER: Paul J. Hebert is appointed Special Master. Mr. Hebert shall file an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. 455 no later than 05/30/2014. Signed by Chief Judge Brian A. Jackson on 05/23/2014. (CGP) (Entered: 05/23/2014)
172 AFFIDAVIT regarding 171 Order, by Paul J. Hebert. (Hebert, Paul) (Entered: 05/27/2014)
173 FINAL ORDER APPOINTING SPECIAL MASTER: Paul J. Hebert of Ottinger Hebert, L.L. C. in Lafayette, Louisiana is appointed SPECIAL MASTER. All other aspects of the Court's Order Conditionally Appointing Paul J. Hebert as Special Master 171 shall be implemented IMMEDIATELY. Signed by Chief Judge Brian A. Jackson on 05/29/2014. (CGP) (Entered: 05/29/2014)
174 JOINT MOTION and Incorporated Memorandum for Expedited Entry of Final Judgment by All Plaintiffs. (Montagnes, Mercedes) Modified on 6/3/2014 to edit text (JDL). (Entered: 06/02/2014)
175 JUDGMENT granting 91 MOTION for Entry of Final Judgment and 174 MOTION and Incorporated Memorandum for Expedited Entry of Final Judgment. JUDGMENT is hereby rendered IN FAVOR of Plaintiffs Elzie Ball, Nathaniel Code, and James Magee and AGAINST Defendants James M. LeBlanc, Nathan Burl Cain, Angelia Norwood, and the Louisiana Department of Public Safety and Corrections as to Plaintiffs' claims under the Eighth Amendment to the United States Constitution. JUDGMENT is hereby rendered IN FAVOR of Defendants James M. LeBlanc, Nathan Burl Cain, Angelia Norwood, and the Louisiana Department of Public Safety and Corrections and AGAINST Plaintiffs Elzie Ball, Nathaniel Code, and James Magee as to Plaintiffs' claims under Title II of the Americans with Disabilities Act, as modified by tbe Americans with Disabilities Act Amendment Act and Section 504 of the Rehabilitation Act of 1973. The plaintiff's shall file their motion for attorney's fees no later than 07/14/2014. Signed by Chief Judge Brian A. Jackson on 06/02/2014. (NLT) Modified on 6/4/2014 to edit the text (NLT). (Entered: 06/03/2014)
176 NOTICE OF APPEAL to the USCA for the 5th Circuit by Elzie Ball, Nathaniel Code, James Magee. Filing fee $ 505, receipt number 053N−1086113. (Vora, Nilay) (Entered: 06/05/2014)
177 NOTICE of Change of Firm Name by Elzie Ball, Nathaniel Code, James Magee (Vora, Nilay) (Entered: 06/05/2014)
178 MEMORANDUM dated 6/6/2014 from Clerk, USCA to Counsel or Parties Re: Order entered granting appellants' motion for stay pending appeal. (JDL) (Entered: 06/09/2014)
179 REQUEST by All Plaintiffs for Record on Appeal regarding 176 Notice of Appeal to the USCA for the 5th Circuit. (Vora, Nilay) (Entered: 06/10/2014)

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07/14/2014
07/21/2014

180 Letter dated 06/06/2014 from Lyle W. Cayce, Clerk − U.S. Court of Appeals for the 5th Circuit to Counsel or Parties Listed Re: Appellants' motion for stay pending appeal is GRANTED. (CGP) (Entered: 06/11/2014)
181 NOTICE TO COUNSEL: Unable to comply with REQUEST for Entire Record on Appeal at this time. The US Court of Appeals has not issued a briefing notice. Another request is required once the briefing notice has been issued. (TMR) (Entered: 06/11/2014)
182 Letter dated 06/11/2014 from Lyle W. Cayce, Clerk − U.S. Court of Appeals for the 5th Circuit to Donna Gregory Re: Briefing Notice issued on 06/09/2014, being suspended pending the opening of the cross appeal, filed in the district court on 06/05/2014, and the certification of the complete, supplemental record. (CGP) (Entered: 06/17/2014)
183 MANDATE of USCA as to 103 Notice of Appeal to the USCA for the 5th Circuit, filed by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. The petition for writ of mandamus is DENIED. (CGP) (Entered: 06/30/2014)
Record on Appeal, #14−30067, Electronically Certified. regarding 176 Notice of Appeal to the USCA for the 5th Circuit. US Court of Appeals notified of certification. (TMR) (Entered: 07/01/2014)
184 Report of Special Master Paul J. Hebert by Paul J. Hebert. (Attachments: # 1 Attachment Addendum 1, # 2 Attachment Addendum2, # 3 Attachment Addendum 3)(Hebert, Paul) Modified to edit text on 7/3/2014 (SMG). (Entered: 07/02/2014)
185 REQUEST by All Plaintiffs for Record on Appeal regarding 176 Notice of Appeal to the USCA for the 5th Circuit. (Vora, Nilay) (Entered: 07/08/2014)
186 Transmitted Electronic Record on Appeal to Counsel of Record regarding 176 Notice of Appeal to the USCA for the 5th Circuit. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (Attachments: # 1 Certified Appeal Record, Docket Sheet, # 2 Certified Appeal Record, Vol. 1, # 3 Certified Appeal Record, Vol. 2, # 4 Certified Appeal Record, Vol. 3, # 5 Certified Appeal Record, Vol. 4, # 6 Certified Appeal Record, Vol. 5, # 7 Certified Appeal Record, Vol. 6, # 8 Certified Appeal Record, Vol. 7, # 9 Certified Appeal Record, Vol. 8, # 10 Certified Appeal Record, Vol. 9, # 11 Certified Appeal Record, Vol. 10, # 12 Certified Appeal Record, Vol. 11, # 13 Certified Appeal Record, Vol. 12, # 14 Certified Appeal Record, Vol. 13, # 15 Certified Appeal Record, Vol. 14, # 16 Certified Appeal Record, Vol. 15, # 17 Certified Appeal Record, Vol. 16, # 18 Certified Appeal Record, Vol. 17, # 19 Certified Appeal Record, Vol. 18, # 20 Certified Appeal Record, Vol. 19, # 21 Certified Appeal Record, Supplemental #1 Docket Sheet, # 22 Certified Appeal Record, Supplemental #1 Vol. 1, # 23 Certified Appeal Record, Transcript 8−5−13, # 24 Certified Appeal Record, Transcript 8−6−13, # 25 Certified Appeal Record, Transcript 8−7−13, # 26 Certified Appeal Record, Supplemental #2 Docket Sheet, # 27 Certified Appeal Record, Transcript 7−2−3, # 28 Certified Appeal Record, Supplemental #3 Docket Sheet, # 29 Certified Appeal Record, Supplemental #3 Vol. 1)(TMR) (Entered: 07/08/2014)
187 MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Ex.A, # 3 Exhibit Ex.A−a, # 4 Exhibit Ex.A− b, # 5 Exhibit Ex.A−c, # 6 Exhibit Ex.A−d, # 7 Exhibit Ex.A−e, # 8 Exhibit Ex.B, # 9 Exhibit Ex. C, # 10 Exhibit Ex.D, # 11 Exhibit Ex.E, # 12 Exhibit Ex. F, # 13 Exhibit Ex. G, # 14 Exhibit Ex. G−a, # 15 Exhibit Ex. G−b, # 16 Exhibit Ex. H, # 17 Exhibit Ex. H−a, # 18 Exhibit Ex. I, # 19 Exhibit Ex. I−a, # 20 Exhibit Ex. I−b, # 21 Exhibit Ex. I−c, # 22 Exhibit Ex. I−d, # 23 Exhibit Ex. J, # 24 Exhibit Ex. J−a, # 25 Exhibit Ex. K, # 26 Exhibit Ex. K−a, # 27 Exhibit Ex. L, # 28 Exhibit Ex. M)(Montagnes, Mercedes) (Attachment 14 replaced on 7/15/2014) (SMG). (Attachment 27 replaced on 7/15/2014) (SMG). (Entered: 07/14/2014)
188 MOTION to Strike 187 MOTION for Attorney Fees, or in the Alternative MOTION to Hold in Abeyance by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Hilburn, James) Modified on 7/22/2014 to edit text (JDL). (Entered: 07/21/2014)

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09/26/2014 10/16/2014

189 MOTION for Expedited Hearing on 188 MOTION to Strike 187 MOTION for Attorney Fees, or in the Alternative, MOTION to Hold in Abeyance by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Hilburn, James) Modified on 7/22/2014 to edit text (JDL). (Entered: 07/21/2014)
190 Letter dated 07/08/2014 from Clerk of Court to Nilay U. Vora Re: Trial Exhibits (TMR) (Entered: 07/22/2014)
191 RESPONSE in Opposition to 189 MOTION for Expedited Hearing on 188 MOTION to Strike 187 MOTION for Attorney Fees or in the Alternative, MOTION to Hold in Abeyance filed by All Plaintiffs. (Montagnes, Mercedes) (Entered: 07/22/2014)
192 Letter to Clerk's Office from Jodi L. Nuss, assistant to James L. Hilburn − Return of 5 discs containing original trial exhibits. (LLH) (Entered: 07/25/2014)
193 MOTION for Extension of Time to File Response to 187 MOTION for Attorney Fees by All Defendants. (Attachments: # 1 Proposed Order)(Jones, Carlton) (Entered: 07/31/2014)
194 STATUS REPORT REPORT OF SPECIAL MASTER PAUL J. HEBERT by Paul J. Hebert. (Hebert, Paul) (Entered: 07/31/2014)
195 ORDER granting in part and denying in part 193 Motion for Extension of Time to File Opposition to Plaintiff's Motion to Set Attorneys' Fees and Costs. Defendants are granted a 21 day extension, or until 8/25/2014, to file their memorandum in opposition to Plaintiffs' Motion to Set Attorneys' Fees and Costs. The 189 Motion for Expedited Hearing on Motion to Strike or in the Alternative Motion to Hold Abeyance is DENIED. Signed by Chief Judge Brian A. Jackson on 8/11/2014. (SMG) (Entered: 08/12/2014)
Set/Reset Deadlines as to 187 MOTION for Attorney Fees. (SMG) (Entered: 08/12/2014)
196 MOTION for Leave to File Out of Time Opposition to Defendants' Motion to Strike or in the Alternative Motion to Hold in Abeyance by All Plaintiffs. (Attachments: # 1 Proposed Pleading;)(Montagnes, Mercedes) Modified to edit text on 8/13/2014 (SMG). (Entered: 08/12/2014)
197 ORDER granting 196 MOTION for Leave to File Out of Time Opposition to Defendants' Motion to Strike or in the Alternative Motion to Hold in Abeyance filed by Nathaniel Code, Elzie Ball, James Magee. Signed by Chief Judge Brian A. Jackson on 08/14/2014. (CGP) (Entered: 08/15/2014)
198 OPPOSITION to 188 MOTION to Strike 187 MOTION for Attorney Fees or in the Alternative MOTION to Hold in Abeyance filed by Elzie Ball, Nathaniel Code, James Magee. (CGP) (Entered: 08/15/2014)
199 MOTION for Leave to File Memorandum in Excess of the Page Limitation by All Defendants. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading; Opposition Memorandum, # 3 Proposed Pleading; Exhibit 1, # 4 Proposed Pleading; Exhibit 2)(Jones, Carlton) (Entered: 08/25/2014)
200 REPORT of Special Master (August 29, 2014) by Paul J. Hebert. (Hebert, Paul) Modified on 9/2/2014 to edit text (JDL). (Entered: 08/29/2014)
201 MOTION for Leave to File Reply Brief to 199 Defendants' Opposition to 187 Motion to Set Attorneys' Fees and Costs Pursuant to 42 USC 1988 and FRCP 54(d) in Excess of the Page Limit by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Reply Brief, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7)(Montagnes, Mercedes) (Attachment 7 replaced on 9/10/2014 to correct page orientation) (JDL). Modified on 9/10/2014 to edit text (JDL). (Entered: 09/09/2014)
202 Report of Special Master (September 26, 2014) by Paul J. Hebert. (Hebert, Paul) Modified to edit text on 9/26/2014 (SMG). (Entered: 09/26/2014)
203 MOTION to MAINTAIN THE STATUS QUO by All Plaintiffs. (Attachments: # 1 Memorandum in Support Memorandum, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6,

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10/31/2014
11/17/2014 11/20/2014

# 8 Exhibit Exhibit 7)(Montagnes, Mercedes) (Entered: 10/16/2014)
204 MOTION for Expedited Hearing on 146 MOTION to Compel Payment of Expert Fees by All Plaintiffs. (Montagnes, Mercedes) (Entered: 10/16/2014)
205 MEMORANDUM in Opposition to 203 MOTION to MAINTAIN THE STATUS QUO filed by All Defendants. (Guillot, Grant) (Entered: 10/16/2014)
206 MOTION for Leave to File Reply to Opposition to Motion to Maintain Status Quo by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Reply to Opposition)(Compa, Elizabeth) (Entered: 10/21/2014)
207 ORDER: Plaintiff's 203 MOTION to MAINTAIN THE STATUS QUO shall be heard WITH ORAL ARGUMENT on 10/28/2014 at 02:30 PM in Courtroom 2. Signed by Chief Judge Brian A. Jackson on 10/21/2014. (LLH) (Entered: 10/22/2014)
208 MOTION Permission to Have Warden Burl Cain Testify on Behalf of All Defendants with Request for Expedited Consideration by All Defendants. (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion to Have Warden Burl Cain Testify on Behalf of All Defendants)(Guillot, Grant). Added MOTION for Expedited Hearing on 10/24/2014 (SMG). (Entered: 10/23/2014)
209 ORDER granting 206 MOTION for Leave to File Reply to 205 Opposition to 203 Motion to Maintain Status Quo filed by Nathaniel Code, Elzie Ball, James Magee. Signed by Chief Judge Brian A. Jackson on 10/23/2014. (LLH) (Entered: 10/23/2014)
210 REPLY to 205 Memorandum in Opposition to 203 MOTION to MAINTAIN THE STATUS QUO , filed by Elzie Ball, Nathaniel Code, James Magee. (LLH) (Entered: 10/23/2014)
211 Report of Special Master Paul J. Hebert by Paul J. Hebert. (Hebert, Paul) Modified to edit text on 10/24/2014 (SMG). (Entered: 10/24/2014)
212 ORDER denying 208 MOTION for Permission to Have Warden Burl Cain Testify on Behalf of All Defendants with Request for Expedited Consideration. Signed by Chief Judge Brian A. Jackson on 10/28/2014. (NLT) (Entered: 10/28/2014)
213 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Motion Hearing held on 10/28/2014 re 203 MOTION to MAINTAIN THE STATUS QUO filed by Nathaniel Code, Elzie Ball, James Magee. Counsel presents oral argument to the Court. For reasons stated on the record, the Court GRANTS the Plaintiffs' Motion to Maintain the Status Quo (Doc. 203). The Court orders the Defendants to maintain the status quo in the death rowtiers. The Defendants, as ordered by the Court, shall not make any alterations to the death row tiers without the prior approval of the District Court. Defendants continuedfailure to maintain the status quo in the death row tiers shall result in sanctions against Defendants. The Court GRANTS the Plaintiffs' request for reasonable attorneys' fees and costs associated with the instant motion. (Court Reporter C. Smith.) (PJH) Modified on 11/24/2014 to edit date of hearing(PJH). (Entered: 10/30/2014)
214 ORDER granting 203 Motion to Maintain the Status Quo. Defendants shall maintain the status quo in the death row tiers. Defendants shall not make any alterations to the death row tiers without the prior approval of the District Court. Defendants continued failure to maintain the status quo in the death row tiers shall result in sanctions against Defendants. Plaintiffs' request for reasonable attorneys fees and costs associated with the instant motion is GRANTED. Plaintiffs shall file their motion for attorneys fees and costs no later than 11/21/2014. Signed by Chief Judge Brian A. Jackson on 10/30/2014. (SMG) (Entered: 10/31/2014)
215 MOTION for Telephone Status Conference by All Plaintiffs. (Attachments: # 1 Memorandum in Support Memorandum in Support)(Montagnes, Mercedes) (Entered: 11/17/2014)
216 MOTION for Attorney Fees and Costs Regarding Maintenance of the Status Quo by All Plaintiffs. (Attachments: # 1 Memorandum in Support Memorandum in Support, # 2 Affidavit Montagnes Affidavit, # 3 Attachment Montagnes Timesheet, # 4 Affidavit Compa Affidavit, # 5 Attachment Compa Timesheet, # 6 Affidavit Vora Affidavit, # 7 Attachment Vora Timesheet, # 8 Exhibit Mileage to MDLa, # 9 Exhibit Mileage to

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LSP)(Montagnes, Mercedes) Modified to edit text on 11/20/2014 (BCL). (Entered: 11/20/2014)
217 STATUS REPORT Report of Special Master Paul J. Hebert by Paul J. Hebert. (Hebert, Paul) (Entered: 11/21/2014)
218 MEMORANDUM in Opposition to 216 MOTION for Attorney Fees and Costs Regarding Maintenance of the Status Quo filed by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Guillot, Grant) (Entered: 12/11/2014)
219 MOTION for Leave to File Reply to 218 Opposition to 216 Motion to Set Attorneys Fees and Costs Regarding Maintenance of the Status Quo by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Reply to Opposition)(Montagnes, Mercedes) Modified to edit text on 12/22/2014 (BCL). (Entered: 12/19/2014)
220 Transmitted Record on Appeal Exhibits to US Court of Appeals regarding 176 Notice of Appeal to the USCA for the 5th Circuit. (TMR) (Entered: 12/23/2014)
221 Report of Special Master Paul J. Hebert by Paul J. Hebert. (Hebert, Paul) Modified to edit text on 12/23/2014 (BCL). (Entered: 12/23/2014)
222 Return on Appeal Transmittal Letter. (LLH) (Entered: 01/06/2015)
223 MOTION for Leave to File Supplemental Memorandum Regarding Payment of Expert Fees by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Supplemental Memorandum)(Montagnes, Mercedes) (Entered: 01/22/2015)
224 ORDER granting 219 MOTION for Leave to File Reply to 218 Defendants' Opposition filed by Nathaniel Code, Elzie Ball, James Magee. Signed by Chief Judge Brian A. Jackson on 3/17/2015. (BCL) (Entered: 03/18/2015)
225 REPLY to 218 Opposition to 216 MOTION to Set Attorneys' Fees and Costs Regarding Maintenance of the Status Quo filed by Elzie Ball, Nathaniel Code, James Magee. (BCL) (Entered: 03/18/2015)
226 RULING AND ORDER denying 215 Motion for Telephone Status Conference. Signed by Chief Judge Brian A. Jackson on 3/17/2015. (BCL) (Entered: 03/18/2015)
227 RULING AND ORDER granting 223 MOTION for Leave to File Supplemental Memorandum Regarding Payment of Expert Fees filed by Nathaniel Code, Elzie Ball, James Magee. Signed by Chief Judge Brian A. Jackson on 3/19/2015. (LLH) (Entered: 03/19/2015)
228 Supplemental MEMORANDUM to 146 MOTION to Compel Payment of Expert Fees filed by Elzie Ball, Nathaniel Code, James Magee. (LLH) (Entered: 03/19/2015)
229 ORDER granting Defendants' 199 Motion for Leave to File Memorandum inExcess of the Page Limitation and Plaintiffs' 201 Motion for Leave to File Reply to Defendants' Opposition. Signed by Chief Judge Brian A. Jackson on 7/10/2015. (BCL) (Entered: 07/10/2015)
230 Opposition to 104 MOTION to Set Attorney Fees and Costs filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(BCL) (Entered: 07/10/2015)
231 REPLY to 230 Response in Opposition to Motion, 104 MOTION to Set Attorney's Fees filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(BCL) (Entered: 07/10/2015)
232 STRICKEN FROM THE RECORD Joint MOTION to Suspend Deadlines For Motions for Attorney's Fees on Appeal . (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order)(Montagnes, Mercedes) Modified on 7/20/2015 to edit text (ELW). Modified on 7/21/2015 to remove document as it has been stricken (BCL). (Entered: 07/17/2015)
233 STRICKEN FROM THE RECORD MOTION for Expedited Hearing on 232 Joint MOTION for Extension of Time to File Additional Fees Motion by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed

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Order)(Montagnes, Mercedes) Modified on 7/21/2015 to remove the document as it has been stricken (BCL). (Entered: 07/17/2015)
234 RULING and ORDER granting in part and denying in part 216 Plaintiffs' Motion to Set Attorney's Fees and Costs Regarding the Maintenance of the Status Quo. The Court ASSESSES COSTS against the Defendants in the amount of $15,019 in fees and $243.04 in costs. Signed by Chief Judge Brian A. Jackson on 7/17/2015. (BCL) (Entered: 07/20/2015)
235 Second Joint MOTION to Suspend Deadlines for Motions for Attorneys' Fees on Appeal (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order)(Montagnes, Mercedes) Modified to edit text on 7/21/2015 (BCL). (Entered: 07/20/2015)
236 Second Joint MOTION for Expedited Consideration of 235 Joint Motion to Suspend Deadlines for Motions for Attorneys' Fees on Appeal by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order)(Montagnes, Mercedes) Modified to edit text on 7/21/2015 (BCL). (Entered: 07/20/2015)
237 MOTION to Strike 233 MOTION for Expedited Hearing on 232 Joint MOTION for Extension of Time to File Additional Fees Motion , 232 Joint MOTION for Extension of Time to File Additional Fees Motion by All Plaintiffs. (Attachments: # 1 Memorandum in Support)(Montagnes, Mercedes) (Entered: 07/20/2015)
238 ORDER granting 237 Motion to Strike, 236 Second Joint Motion for Expedited Consideration of Joint Motion to Suspend Deadlines for Motions for Attorneys' Fees on Appeal and 235 Second Joint Motion to Suspend Deadlines for Motions for Attorneys' Fees on Appeal. The deadline for filing motions for attorneys' fees on appeal is hereby SUSPENDED. Signed by Chief Judge Brian A. Jackson on 7/21/2015. (BCL) (Entered: 07/21/2015)
239 MOTION for Status Conference by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order)(Montagnes, Mercedes) (Entered: 08/21/2015)
240 MANDATE of USCA as to 176 Notice of Appeal to the USCA for the 5th Circuit filed by Nathaniel Code, Elzie Ball, James Magee. This cause was considered on the record on appeal and was argued by counsel. It is ordered and adjudged that the judgment of the District Court is affirmed in part and vacated in part, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court. IT IS FURTHER ORDERED that each party bear its own costs on appeal. (LLH) (Entered: 08/25/2015)
241 NOTICE of return of Record on Appeal Exhibits from US Court of Appeals re 220 Appeal Record Sent to USCA. (BCL) (Entered: 08/31/2015)
242 Notice to Counsel: Evidentiary Hearing set for 9/14/2015 at 10:00 AM in Courtroom 2 before Chief Judge Brian A. Jackson on the Plaintiffs' Motion for Attorney Fees filed 7/14/2014 (doc. 187).

Evidence, in electronic format, shall be provided in accordance with Local Rule 79 and Administrative Procedures.

09/14/2015

(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 09/02/2015)
243 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Motion Hearing held on 9/14/2015 re 187 MOTION for Attorney Fees filed by Nathaniel Code, Elzie Ball, James Magee. For reasons stated herein, the Motion for Attorney Fees filed by Plaintiffs (doc. 187) is denied without prejudice. As directed by the Court, Counsel for the Plaintiffs shall confer with the Mr. Hebert, Special Master, regarding reconstruction of their invoice for attorney fees and cost. Plaintiffs' Motion for Attorney Fees shall fee shall be resubmitted by 11/2/2015. Defendants shall file a reply to the Plaintiffs' motion by 12/2/20/15. Briefs shall be limited to 10 pages in length. In light of the Mandate of the 5th Circuit Court of Appeal (doc. 240), Counsel for the Defendants shall submit a plan to address the under lying constitution violation by 10/23/2015. Counsel for the Plaintiffs shall file a response to the Defendants

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submitted plan by 11/23/2015.(Court Reporter C. Smith−Neely.) (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 09/16/2015)
244 TRANSCRIPT REQUEST by Elzie Ball for proceedings held on 09/14/2015 before Judge Brian A. Jackson.. (Vora, Nilay) (Entered: 09/17/2015)
245 MOTION to Substitute Parties Under Rule 25(D) by All Plaintiffs. (Compa, Elizabeth) Modified on 9/28/2015 to edit text (LLH). (Entered: 09/25/2015)
MOTION(S) REFERRED: 245 MOTION to Substitute Party . This motion is now pending before the USMJ. (LLH) (Entered: 09/28/2015)
246 ORDER granting 245 Plaintiffs' Motion for Substitution of Parties Under Rule 25(d). James Cruz, in his official capacity as Warden of Death Row, added. Angela Norwood, in her official capacity as former Warden of Death Row, terminated. Signed by Magistrate Judge Stephen C. Riedlinger on 9/28/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 09/28/2015)
247 RULING AND ORDER granting in part and denying in part 104 MOTION to Set Attorney Fees and Costs Regarding Sanctions Pursuant to Rule 37(A)(5)(A) and This Court's 88 Order. The Court ASSESSES COSTS against Defendants in the amount of $44,007.50 in fees and $5,025 in costs. Signed by Chief Judge Brian A. Jackson on 9/30/2015. (LLH) (Main Document 247 replaced on 1/29/2016 − the Court's previous Ruling and Order is modified to reflect the fact that Scheckman graduated from law school in 1978 rather than 1993. The Court's Ruling and Order is otherwise unaffected.) (PJH). Modified on 1/29/2016 (PJH). (Entered: 09/30/2015)
248 ORDER granting in part and denying in part Plaintiffs' Motion to Compel Payment of Expert Fees (Doc. 146−1). The Court ASSESSES COSTS against Defendants in the amount of $1,939.50 in fees.IT IS FURTHER ORDERED that Plaintiffs' Motion for Expedited Consideration of Motion to Compel Payment of Expert Fees (Doc. 204) is DISMISSED as moot. Signed by Chief Judge Brian A. Jackson on 9/30/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 09/30/2015)
249 REPORT of Special Master Paul J. Hebert by Paul J. Hebert. (Hebert, Paul) Modified on 10/5/2015 to edit the text(NLT). (Entered: 10/05/2015)
250 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Evidentiary hearing before Judge Chief Brian A. Jackson held on 9−14−15. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565. <P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov. </p> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 11/2/2015. Redacted Transcript Deadline set for 11/10/2015. Release of Transcript Restriction set for 1/8/2016. (Smith−Neely, Clare) (Entered: 10/13/2015)
251 NOTICE of Submission of Second Heat Remediation Plan by Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood re 243 Motion Hearing,,,,, Set Deadlines,,,,, Terminate Motions,,,, (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2 − Affidavit of James Cruze)(Hilburn, James) (Entered: 10/23/2015)
252 Unopposed MOTION for Leave to File Declaration of Frank Thompson, P.E. by All Defendants. (Attachments: # 1 Proposed Pleading; Exhibit 3 to Doc. 251)(Hilburn, James) (Entered: 10/28/2015)
MOTION(S) REFERRED: 252 Unopposed MOTION for Leave to File Declaration of Frank Thompson, P.E. . This motion is now pending before the USMJ. (ELW) (Entered: 10/28/2015)

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253 ORDER granting 252 Unopposed MOTION for Leave to File Declaration of Frank Thompson, P.E., filed by James Cruz, Burl Cain, James M. LeBlanc, Angela Norwood and the Louisiana Department of Public Safety and Corrections. The clerk of court will file the [252−1] Declaration of Frank Thompson, P.E., submitted with the motion. Signed by Magistrate Judge Stephen C. Riedlinger on 10/28/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/28/2015)
254 DECLARATION of Frank Thompson, P.E. by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections (NLT) (Entered: 11/02/2015)
255 MOTION to Set Attorney Fees and Costs Pursuant to 42 U.S.C. 1998 and Fed. R. Civ. P. 54(d) by All Plaintiffs. (Attachments: # 1 Memorandum in Support Memo in Support, # 2 Affidavit Montagnes Affidavit, # 3 Affidavit Compa Affidavit, # 4 Affidavit Vora Declaration, # 5 Exhibit BM Revised Costs Chart, # 6 Exhibit BM Revised Costs Documentation, # 7 Exhibit Vora BM New Time Entries, # 8 Exhibit Vora LTL New Time Entries Prebilling, # 9 Exhibit Vora LTL New Time Entries, # 10 Exhibit BM New Costs Chart, # 11 Exhibit BM New Costs Documentation, # 12 Exhibit Revised Time Entries, # 13 Affidavit Cumming Declaration, # 14 Affidavit Jordan Affidavit, # 15 Affidavit Schwartzmann Declaration, # 16 Exhibit Dupont Invoice, # 17 Exhibit Montagnes New Time Entries, # 18 Exhibit Compa New Time Entries, # 19 Attachment Bill of Costs, # 20 Exhibit PJI New Costs Chart, # 21 Exhibit PJI New Costs Documentation, # 22 Attachment Proposed Order)(Compa, Elizabeth) (Attachment 6, 11 and 21 replaced on 11/3/2015) (ELW). Modified on 11/3/2015 to correct page orientation and edit text (ELW). Modified on 11/12/2015 to replace memo as per Order # 259 (LLH). (Attachment 12 replaced on 3/1/2017) (NLT). (Entered: 11/02/2015)
256 MOTION Substitute Memorandum In Support of Resubmitted Motion for Attorneys' Fees and Costs by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Substituted Memo In Support, # 2 Attachment Proposed Order)(Compa, Elizabeth) (Entered: 11/04/2015)
257 MOTION to Conduct Additional Discovery Regarding Defendants' Second Heat Remediation Plan by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Hilburn Email 11−10−15, # 3 Attachment Proposed Order)(Compa, Elizabeth) Modified on 11/10/2015 to edit text (LLH). (Entered: 11/10/2015)
258 Unopposed MOTION for Extension of Time to File Response to Defendants' Submission of Second Heat Remediation Plan by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order)(Compa, Elizabeth) Modified on 11/10/2015 to edit text (LLH). (Entered: 11/10/2015)
259 ORDER granting 256 Motion to Substitute Memorandum of Law in Support of Plaintiff's Resubmitted Motion to Set Attorneys Fees and Costs. The corrected Memorandum of Law will be filed into the record to substitute Rec. Doc. 255−1. Signed by Chief Judge Brian A. Jackson on 11/10/2015. (LLH) (Entered: 11/12/2015)
260 ORDER granting 257 Unopposed Motion to Conduct Additional DiscoveryRegarding Defendants' Second Heat Remediation Plan and the 258 Unopposed Motion to Extend Deadline for Response to Defendants' Second Heat Remediation Plan. Status Conference set for 12/1/2015 at 09:30 AM in chambers before Chief Judge Brian A. Jackson. Signed by Chief Judge Brian A. Jackson on 11/13/2015. (BCL) (Entered: 11/13/2015)
261 EX Parte MOTION For Admission Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−1324041) by All Plaintiffs. (Attachments: # 1 Affidavit Exhibit A: Declaration, # 2 Attachment Exhibit A−1: Certificate of Good Standing, # 3 Attachment Proposed Order)(Compa, Elizabeth) Modified on 11/18/2015 to edit text (ELW). (Entered: 11/18/2015)
262 ORDER granting 261 Ex Parte Motion for Admission Pro Hac Vice. James M. Lee added as attorney pro hac vice for Elzie Ball, Nathaniel Code and James Magee. Signed by Magistrate Judge Stephen C. Riedlinger on 11/18/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 11/18/2015)

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263 REPORT of Special Master Paul J. Hebert by Paul J. Hebert. (Attachments: # 1 Attachment Affidavit of James "Jimmy" Cruze, Jr.)(Hebert, Paul) (Entered: 11/23/2015)
Set/Reset Hearings: Status Conference set for 12/1/2015 at 09:30 AM will be held in Courtroom 2 before Chief Judge Brian A. Jackson. This is a change in location only! (PJH) (Entered: 11/30/2015)
264 MOTION for Extension of Time to File Opposition to 255 Motion to Set Attorneys' Fees and Costs and Incorporated Memorandum by All Defendants. (Attachments: # 1 Proposed Order)(Jones, Carlton) Modified to edit text on 12/1/2015 (BCL). (Entered: 11/30/2015)
265 ORDER granting 264 MOTION for Extension of Time to File Opposition to 255 Motion to Set Attorneys' Fees and Costs. Defendants SHALL file their opposition by 12/16/2015. Signed by Chief Judge Brian A. Jackson on 12/1/2015. (LLH) (Entered: 12/01/2015)
266 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Status Conference held on 12/1/2015. Status of matter, including discovery requests, discussed. Defendants shall file a response to the Plaintiffs' discovery requests by 1/8/16; Plaintiffs shall file reply to Defendants response two weeks from the filing of the Defendants response. Plaintiffs shall file a brief with regard to costs, limited to 8 pages in length, by 12/11/2015. Defendants response, limited to 8 pages in length, shall be filed by 12/22/2015. Counsel shall meet with Special Master Hebert in an effort to come to some agreement on the issues discussed herein. Counsel shall comply with the date and time of the meeting to be scheduled by Special Master Hebert. (recorded without Court Reporter.) (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 12/02/2015)
267 TRANSCRIPT REQUEST by Paul J. Hebert for proceedings held on 12/01/2015 before Judge Jackson.. (Hebert, Paul) Modified on 12/3/2015 form forwarded to the NLT via email (LLH). (Entered: 12/03/2015)
268 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Status Conference hearing before Judge Chief Brian A. Jackson held on December 1, 2015. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565. <P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov. </p> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/4/2016. Release of Transcript Restriction set for 3/3/2016. (Smith−Neely, Clare) (Entered: 12/07/2015)
269 MOTION for Discovery Regarding Costs of Remedial Measures by All Plaintiffs. (Attachments: # 1 Memorandum in Support Memo in Support, # 2 Exhibit Attorney Declarations and Affidavit of June 6 2014, # 3 Exhibit Death Row Temperature Data, # 4 Attachment Proposed Order)(Compa, Elizabeth) (Entered: 12/11/2015)
270 MEMORANDUM in Opposition to 255 Amended MOTION for Attorney Fees filed by All Defendants. (Jones, Carlton) (Entered: 12/16/2015)
271 ORDER denying 269 Motion for Discovery Regarding Costs of Remedial Measures. The scope of discovery in this case is strictly limited to the proposal outlined in Defendants' Second Heat Remediation Plan. Signed by Chief Judge Brian A. Jackson on 12/17/2015. (BCL) (Entered: 12/17/2015)
272 MOTION for Extension of Time Reply by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order)(Montagnes, Mercedes) (Entered: 12/18/2015)
273 ORDER granting 272 Motion for Extension of Time to File Reply Brief. The deadline for Plaintiffs to reply toDefendants opposition (Doc. 270) is January 13, 2016. Signed by Chief Judge Brian A. Jackson on 12/18/2015. (PJH) (Entered: 12/21/2015)

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274 Report of Special Master Paul J. Hebert by Paul J. Hebert. (Hebert, Paul) Modified to edit text on 12/31/2015 (BCL). (Entered: 12/30/2015)
275 MOTION to Withdraw as Counsel of Record by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (McInnis, Amy) Modified on 1/4/2016 to edit text (ELW). (Entered: 12/31/2015)
MOTION(S) REFERRED: 275 MOTION for Amy L. McInnis to Withdraw as Attorney . This motion is now pending before the USMJ. (ELW) (Entered: 01/04/2016)
276 NOTICE: Pursuant to General Order 2016−02, this case is reassigned from Magistrate Judge Stephen C. Riedlinger to Magistrate Judge Erin Wilder−Doomes. Signed by Chief Judge Brian A. Jackson on 1/4/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(NLT) (Entered: 01/07/2016)
277 ORDER granting 275 Motion to Withdraw as Counsel of Record. Attorney Amy L. McInnis is withdrawn. Signed by Magistrate Erin Wilder−Doomes on 1/8/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 01/08/2016)
278 MOTION for Leave to File Reply to Defendants' Opposition to Plaintiffs' Resubmitted Motion for Attorneys' Fees and Costs by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Reply to Opposition to Resubmitted Atty Fees Motion)(Compa, Elizabeth) (Entered: 01/13/2016)
279 ORDER granting 278 MOTION for Leave to File Reply to Defendants' Opposition to Plaintiffs' Resubmitted 255 Motion to Set Attorneys' Fees and Costs filed by Nathaniel Code, Elzie Ball, James Magee. Signed by Chief Judge Brian A. Jackson on 1/13/2016. (JDL) (Entered: 01/14/2016)
280 REPLY to 270 Opposition to 255 Plaintiff's Resubmitted MOTION to Set Attorney Fees filed by Elzie Ball, Nathaniel Code, James Magee. (JDL) (Entered: 01/14/2016)
281 MOTION for Leave to File Response to Second Heat Remediation Plan by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order)(Montagnes, Mercedes) (Entered: 01/20/2016)
282 ORDER granting 281 MOTION for Leave to File Response to 251 Second Heat Remediation Plan. The response shall be submitted on or before 2/12/2016. Signed by Chief Judge Brian A. Jackson on 1/26/2016. (LLH) (Entered: 01/26/2016)
283 ORDER REFERRING MOTION to USMJ: The 255 Motion to Set Attorneys' Fees and Costs Pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 54( d) is REFERRED IN PART to Magistrate Judge Wilder−Doomes, who will issue a Report and Recommendation as to the reasonable hours expended and the reasonable costs incurred. All issues related to rate(s) applicable under the Prison Litigation Reform Act ("PLRA") remain with this Court. Signed by Chief Judge Brian A. Jackson on 01/27/2016. (BCL) (Entered: 01/28/2016)
284 Notice to Counsel: A Status Conference set for 2/16/2016 at 01:30 PM in chambers before Magistrate Erin Wilder−Doomes to discuss the Plaintiff's Motion to Set Attorneys Fees and Costs Pursuant to 42 U.S.C. 1998 and Fed. R. Civ. P. 54(d) (R. Doc. 255), as well as the Opposition (R. Doc. 270), and Reply (R. Doc. 280). (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(SGO) (Entered: 01/29/2016)
285 STATUS REPORT Report of Special Master Paul J. Hebert by Paul J. Hebert. (Hebert, Paul) (Entered: 02/03/2016)
286 Emergency Consent MOTION to Extend Deadline for Response to Defendants' Second Heat Remediation Plan by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order)(Compa, Elizabeth) Modified on 2/12/2016 to edit text (LLH). (Entered: 02/11/2016)
287 ORDER granting 286 Motion for Extension of Time. Signed by Chief Judge Brian A. Jackson on 02/12/2016. (ELW) (Entered: 02/12/2016)

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288 Notice to Counsel: At the request of the parties, the Status Conference set for 2/16/2016 at 1:30 pm is cancelled. The parties shall confer about the 2/24/2016 date and contact the court at (225) 389−3584 to confirm the date and a specific time. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 02/16/2016)
289 Notice to Counsel: Status Conference set for 2/24/2016 at 03:00 PM in chambers before Magistrate Erin Wilder−Doomes. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(SGO) (Entered: 02/16/2016)
290 RESPONSE to Defendants' Second Heat Remediation Plan filed by All Plaintiffs. (Attachments: # 1 Exhibit Vassallo Dec., # 2 Exhibit Compa Aff., # 3 Exhibit Temperature Data, # 4 Exhibit Thompson Dep., # 5 Exhibit Cruze Dep., # 6 Exhibit Cruze Interrogatory Responses, # 7 Exhibit Singh Dep., # 8 Exhibit Status Conference Transcript, # 9 Exhibit Defs RFP Response, # 10 Exhibit Emails to all counsel)(Compa, Elizabeth) (Attachment 4 replaced on 2/23/2017) (NLT). (Entered: 02/16/2016)
291 NOTICE of Hearing: Hearing to address Plaintiffs' objection to Defendants' Second Heat Remediation Plan set for 3/7/2016 at 10:00 AM in Courtroom 2 before Chief Judge Brian A. Jackson. This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(PJH) (Entered: 02/18/2016)
292 Minute Entry for proceedings held before Magistrate Judge Erin Wilder−Doomes: Status Conference was held on 2/24/2016. Counsel discussed the status of the pending Plaintiffs' Motion to Set Attorneys' Fees and Costs Pursuant to 42 U.S.C. § 1998 and Fed. R. Civ. P. 54(d) (R. Doc. 255). Defendants shall submit a spreadsheet to the Court detailing specific objections to each of plaintiffs' revised time entry submissions on or before March 25, 2016. Motion Hearing set for 4/19/2016 at 09:00 AM in Courtroom 5 before Magistrate Judge Erin Wilder−Doomes. (SGO) (Entered: 03/11/2016)
293 Minute Entry for proceedings held before Chief Judge Brian A. Jackson on Plaintiffs' Objection to Defendants' Second Heat Remediation Plan: Counsel presents oral argument on Plaintiffs' Objection to Defendants' Second Heat Remediation Plan. For reasons stated on the record, the Special Master shall: (1) determine if ice distribution creates a security problem on death row; (2) determine whether Defendants are maintaining ice distribution records; and (3) ensure, to the extent possible, that heat related monitoring reports are simultaneously distributed. (Court Reporter C. Smith−Neely.) (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 03/14/2016)
294 STATUS REPORT Report of Special Master Paul J. Hebert by Paul J. Hebert. (Hebert, Paul) (Entered: 03/16/2016)
295 Supplemental MEMORANDUM in Response to 255 Amended MOTION for Attorney Fees filed by All Defendants. (Attachments: # 1 Exhibit Spreadsheet)(Jones, Carlton) Modified on 3/28/2016 to edit text (LLH). (Entered: 03/25/2016)
296 Notice to Counsel: Pending before the court is Plaintiffs' 255 Motion to Set Attorney's Fees and Costs Pursuant to 42 U.S.C. § 1998 and Fed. R. Civ. P. 54(d). The motion is set for hearing on 4/19/2016 at 9:00 a.m. Each party is ordered to submit a confidential affidavit regarding settlement efforts as to the plaintiffs' motion for attorney's fees and costs no later than 4/11/2016. The confidential affidavit should contain the dollar figure of the most recent offer and counteroffer, the date the offer and counteroffer were made, and the partys statement as to what would constitute satisfactory resolution of the claim. The confidential affidavit can be faxed to the court at (225) 389−3585 or hand delivered. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 03/29/2016)
297 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Motion Hearing hearing before Judge Chief Brian A. Jackson held on 3−7−16. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our

website at www.lamd.uscourts.gov.

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04/20/2016 04/21/2016 04/22/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/18/2016. Redacted Transcript Deadline set for 4/26/2016. Release of Transcript Restriction set for 6/24/2016. (Smith−Neely, Clare) (Entered: 03/29/2016)
298 NOTICE of Order Issued by Special Master Paul J. Hebert by Paul J. Hebert (Attachments: # 1 Exhibit March 29, 2016 Letter, # 2 Exhibit Heat Index Equation)(Hebert, Paul) (Entered: 04/07/2016)
299 Submission of Revised Second Heat Remediation Plan by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections re 251 Notice of (other), (Attachments: # 1 Exhibit Exhibits A−F)(Hilburn, James) Modified on 4/11/2016 to edit text (LLH). (Entered: 04/08/2016)
300 REVISED MOTION to Substitute Colin Clark and Winston White in place of E. Wade Shows, James L. Hilburn, and Grant J. Guillot as Attorney by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Hilburn, James). Modified on 4/15/2016 to substitute documents as per 302 Order (SGO). (Entered: 04/11/2016)
301 MOTION for Leave to Substitute Motion to Withdraw and Substitute Counsel of Record by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Proposed Pleading; Proposed Pleading)(Hilburn, James) (Entered: 04/13/2016)
MOTION(S) REFERRED: 301 MOTION for Leave to Substitute Motion to Withdraw and Substitute Counsel of Record . This motion is now pending before the USMJ. (ELW) (Entered: 04/13/2016)
MOTION(S) REFERRED: 300 MOTION to Substitute Colin Clark and Winston White in place of E. Wade Shows, James L. Hilburn, and Grant J. Guillot as Attorney . This motion is now pending before the USMJ. (ELW) (Entered: 04/14/2016)
302 ORDER granting 301 MOTION for Leave to Substitute 300 Motion to Withdraw and Substitute Counsel of Record. The proposed pleading attached to R. Doc. 301 shall be substituted in place of R. Doc. 300. Signed by Magistrate Judge Erin Wilder−Doomes on 4/15/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 04/15/2016)
303 ORDER granting 300 Revised Motion to Withdraw and Substitute Counsel of Record. Colin Andrew Clark and Winston Eric White are added for all defendants and the law firm of Shows, Cali & Walsh, LLP is withdrawn. Signed by Magistrate Judge Erin Wilder−Doomes on 4/15/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 04/15/2016)
305 Minute Entry for proceedings held before Magistrate Judge Erin Wilder−Doomes: Motion Hearing held on 4/19/2016 regarding the 255 Amended MOTION for Attorney Fees. Plaintiffs are to file into the record a revised spreadsheet containing a column for time sought after entries are reduced for travel time using the spreadsheet that was last submitted by Defendants (R. Doc. 295) within 7 days from the date of this Hearing Report and Order. Plaintiffs are also to submit the revised spreadsheet to the Court in electronic form by submitting it to ewd_orders@lamd.uscourts.gov. Counsel were advised to continue efforts toward amicable resolution of this matter and to notify the Court immediately should they come to a resolution. (SGO) (Entered: 04/20/2016)
304 RESPONSE to 299 Defendants' Submission of Revised Heat Remediation Plan filed by All Plaintiffs. (Attachments: # 1 Exhibit Montagnes Declaration)(Compa, Elizabeth) (Entered: 04/20/2016)
306 MOTION for Leave to File Supplemental Briefing re Plaintiffs' Resubmitted Motion to Set Atty Fees and Costs by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Revised Spreadsheet)(Compa, Elizabeth) (Entered: 04/21/2016)
307 Notice to Counsel: A Status Conference is set in this matter for MONDAY, APRIL 25, 2016 at 10:30 AM in Chambers before Chief Judge Brian A. Jackson. (This is a TEXT

04/22/2016
04/25/2016
04/27/2016 05/06/2016 05/09/2016 05/09/2016 05/12/2016 05/16/2016 05/16/2016 05/17/2016 05/19/2016 05/20/2016
05/24/2016

ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 04/22/2016)
308 AMENDED Notice to Counsel: Status conference scheduled for 4/25/16 at 10:30 a.m. will be held via TELEPHONE. Counsel for the Plaintiffs shall be responsible for initiating the conference call to opposing counsel and the Court, or in the alternative, obtaining a conference call−in number, and notifying the Court and opposing counsel of the conference call−in number and pass code. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(PJH) (Entered: 04/22/2016)
309 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Telephone Conference held on 4/25/2016. Matter discussed. As directed by the Court, Counsel shall file simultaneous briefing addressing Mr. Hebert's continued role as Special Master on or before May 9, 2016. Filings not to exceed 10 pages. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 04/26/2016)
310 NOTICE of Settlement by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections (Jones, Carlton) (Entered: 04/27/2016)
311 STATUS REPORT Report of Special Master Paul J. Hebert by Paul J. Hebert. (Attachments: # 1 Attachment Exhibit A, # 2 Attachment Exhibit B, # 3 Attachment Exhibit C, # 4 Attachment Exhibit D, # 5 Attachment Exhibit E)(Hebert, Paul) (Entered: 05/06/2016)
312 BRIEF Regarding the Special Master's Continued Role filed by All Plaintiffs. (Compa, Elizabeth) Modified on 5/10/2016 (EDC). (Entered: 05/09/2016)
313 Memorandum Addressing Mr. Hebert's Continued Role as Special Master by All Defendants. (Attachments: # 1 Exhibit A)(White, Winston) Modified on 5/10/2016 to edit text and term motion (LLH). (Entered: 05/09/2016)
314 NOTICE of Order Issued by Special Master Paul J. Hebert by Paul J. Hebert (Hebert, Paul) (Entered: 05/12/2016)
315 First MOTION to Modify Injunctive Relief by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C)(Montagnes, Mercedes) (Entered: 05/16/2016)
316 MOTION for Expedited Hearing on 315 First MOTION to Modify Injunctive Relief by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Montagnes, Mercedes) (Entered: 05/16/2016)
317 ORDER granting 316 Motion for Expedited Hearing on 315 MOTION to Modify Injunctive Relief . Motion Hearing set for 5/20/2016 at 09:30 AM in Courtroom 2 before Chief Judge Brian A. Jackson. Signed by Chief Judge Brian A. Jackson on 5/17/2016. (LLH) (Entered: 05/17/2016)
318 MEMORANDUM in Opposition to 315 First MOTION to Modify Injunctive Relief filed by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Exhibit A)(White, Winston) (Entered: 05/19/2016)
319 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Motion Hearing held on 5/20/2016 re 315 First MOTION to Modify Injunctive Relief filed by Nathaniel Code, Elzie Ball, James Magee. Counsel presents oral argument to the Court. For reasons stated herein, an Evidentiary Hearing in this matter is set for 6/15/2016 at 09:30 AM in Courtroom 2 before Chief Judge Brian A. Jackson. As discussed, Secretary LeBlanc shall attend the hearing scheduled for 6/15/2016. The Court granted the Plaintiffs leave of Court to file a Reply to the Defendants' Opposition (doc. 318).(Court Reporter C. Smith−Neely.) (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 05/20/2016)
320 TRANSCRIPT REQUEST of Hearing on Motion to Modify Injunction by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections for proceedings held on 5−20−16 before Judge Judge Jackson.. (White, Winston) (Main Document 320 replaced on 5/24/2016 to flatten pages) (EDC). Modified on 5/24/2016

05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/26/2016 05/26/2016
05/26/2016
05/26/2016
05/26/2016 05/27/2016 05/27/2016

(EDC). (Entered: 05/24/2016)
321 Unopposed MOTION for Discovery by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment)(Montagnes, Mercedes) Modified on 5/26/2016 to edit event (LLH). (Entered: 05/25/2016)
322 MOTION for Writ of Habeas Corpus ad testificandum by Elzie Ball. (Attachments: # 1 Attachment Proposed Order)(Montagnes, Mercedes) (Entered: 05/25/2016)
323 MOTION for Writ of Habeas Corpus ad testificandum by Nathaniel Code. (Attachments: # 1 Attachment Proposed Order)(Montagnes, Mercedes) (Entered: 05/25/2016)
324 MOTION for Writ of Habeas Corpus ad testificandum by James Magee. (Attachments: # 1 Attachment Proposed Order)(Montagnes, Mercedes) (Entered: 05/25/2016)
MOTION(S) REFERRED: 321 Unopposed MOTION for Discovery . This motion is now pending before the USMJ. (TNB) (Entered: 05/26/2016)
325 ORDER granting 321 Unopposed Motion to Enter Discovery Order. All written discovery on or before 5/27/2016. Disclose all percipient and expert witnesses on or before 5/30/2016. Notice all depositions on or before 5/31/2016. Furnish all written discovery responses on or before 6/9/2016 at 2:00 p.m. and exchange exhibit lists on or before 6/10/2016. Signed by Chief Judge Brian A. Jackson on 5/26/2016. (LLH) (Entered: 05/26/2016)
326 ORDER granting 322 , 323 , 324 Motion for Writ of Habeas Corpus ad testificandum. The Louisiana State Penitentiary SHALL PRODUCE ELZIE BALL (#79472), NATHANIEL CODE (#81600), and JAMES MCGEE (#559701) on WEDNESDAY, 6/15/2016 AT 9:00 A.M. in Courtroom 2, Russell B. Long Federal Building & United States Courthouse, 777 Florida Street, Baton Rouge, Louisiana 70801. Signed by Chief Judge Brian A. Jackson on 5/26/2016. (LLH) (Entered: 05/26/2016)
327 ORDER: Considering the 310 Notice of Settlement filed pursuant to LR16(c). The 255 Motion to Set Attorney Fees and Costs Pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 54(d) is DENIED as moot. Signed by Chief Judge Brian A. Jackson on 5/26/2016. (LLH) (Entered: 05/26/2016)
328 STATUS REPORT by Special Master Paul J. Hebert by Paul J. Hebert. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hebert, Paul) (Entered: 05/26/2016)
329 Joint STIPULATION OF FACTS RELATING TO REMEDY by Elzie Ball, Nathaniel Code, James Magee. (Vora, Nilay) (Entered: 05/27/2016)
330 Notice to Counsel: The Court notes the Joint Stipulation filed into the record as doc. 329. The site visit, however, will go forward as planned.

05/27/2016 05/27/2016 05/31/2016

(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 05/27/2016)
331 MOTION to Enroll E. Wade Shows, James L. Hilburn, Grant J. Guillot, and the Law Firm of Shows, Cali, and Walsh, LLP as Additional Attorney by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (White, Winston) (Entered: 05/27/2016)
MOTION(S) REFERRED: 331 MOTION to Enroll E. Wade Shows, James L. Hilburn, Grant J. Guillot, and the Law Firm of Shows, Cali, and Walsh, LLP as Additional Attorney . This motion is now pending before the USMJ. (EDC) (Entered: 05/27/2016)
332 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Motion Hearing hearing before Judge Chief Brian A. Jackson held on 5−20−16. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

06/01/2016 06/01/2016 06/01/2016
06/06/2016 06/06/2016 06/07/2016 06/08/2016 06/08/2016 06/10/2016 06/13/2016
06/15/2016
06/15/2016 06/16/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 6/20/2016. Redacted Transcript Deadline set for 6/28/2016. Release of Transcript Restriction set for 8/26/2016. (Smith−Neely, Clare) (Entered: 05/31/2016)
333 Return on MOTIONS GRANTING WRITS OF HABEAS CORPUS AD TESTIFICANDUM. ACCEPTED BY RHONDA WELDON − D.O.C. LEGAL ON 05/26/2016. (US Marshal, ) (Entered: 06/01/2016)
334 TRANSCRIPT REQUEST by Paul J. Hebert for proceedings held on 05−20−16 before Judge Jackson.. (Hebert, Paul) (Entered: 06/01/2016)
335 ORDER granting 331 Motion to Enroll Additional Counsel of Record. Attorneys Enroll E. Wade Shows, James L. Hilburn, Grant J. Guillot, and the Law Firm of Shows, Cali, and Walsh, LLP are added as counsel for James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections and Darrel Vannoy. Signed by Magistrate Judge Erin Wilder−Doomes on 6/1/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BLR) (Entered: 06/01/2016)
336 MOTION to Compel by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Proposed Pleading; Proposed Order)(Montagnes, Mercedes) (Entered: 06/06/2016)
MOTION(S) REFERRED: 336 MOTION to Compel . This motion is now pending before the USMJ. (EDC) (Entered: 06/06/2016)
Motions No Longer Referred: 336 MOTION to Compel . This motion is now pending before the USDJ. (PJH) (Entered: 06/07/2016)
337 ORDER granting 336 Motion to Compel Discovery Responses on Camp F. IT IS FURTHER ORDERED that Defendants shall respond to Plaintiffs discovery requests on or before June 10, 2016 at 5:00 p.m. Signed by Chief Judge Brian A. Jackson on 6/8/2016. (PJH) . (Entered: 06/08/2016)
Set/Reset Deadlines: Response to Discovery due by 6/10/2016. (PJH) (Entered: 06/08/2016)
338 Exhibit List for June 15, 2016 Evidentiary Hearing by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections.. (Hilburn, James) (Entered: 06/10/2016)
339 STATUS REPORT by Special Master Paul J. Hebert by Paul J. Hebert. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Hebert, Paul) (Attachment 1−8 replaced on 6/14/2016) (TNB). Modified on 6/14/2016 to correct page orientation (TNB). (Entered: 06/13/2016)
345 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Evidentiary Hearing held on 6/15/2016. Stipulation read into the record. Without objection, Exhibits D1, D2, and D3 are admitted. Counsel presents opening statements to the Court. Nathaniel Code, James McGee, Elzie Ball, and Dr. Susi Vassallo are sworn and testify on behalf of the Plaintiffs. Exhibits filed on behalf of Plaintiffs. Plaintiffs rest. Frank Thompson, Warden James Cruz, Jr., and Dr. Raman Singh are sworn and testify on behalf of the Defendants. Exhibits filed on behalf of the Defendants. Defendants rest. Plaintiffs rest on rebuttal. The Court hears closing arguments. Post hearing briefs, limited to 12 pages in length, shall be filed no later than July 11, 2016.(Court Reporter C. Smith−Neely.) (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) Pursuant to Local Rules, offering parties shall retain custody of exhibits..(PJH) (Entered: 06/21/2016)
416 EXHIBITS D1, D2, AND D3 admitted at Evidentiary Hearing held June 15, 2016(PJH) (Additional attachment(s) added on 5/9/2017: # 1 Exhibit Def−1, # 2 Exhibit Def−2, # 3 Exhibit Def−3) (TMR). (Entered: 05/09/2017)
340 TRANSCRIPT REQUEST (Expedited) by Elzie Ball, Nathaniel Code, James Magee for proceedings held on 6/15/2016 before Judge Brian A. Jackson.. (Compa, Elizabeth)

06/17/2016 06/20/2016 06/20/2016 06/21/2016
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(Entered: 06/16/2016)
341 TRANSCRIPT REQUEST by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections for proceedings held on June 15, 2016 before Judge Jackson.. (White, Winston) (Entered: 06/17/2016)
342 TRANSCRIPT REQUEST by Paul J. Hebert for proceedings held on 06/15/2016 before Judge Jackson.. (Hebert, Paul) (Entered: 06/20/2016)
343 Joint STIPULATION for June 15, 2016 Evidentiary Hearing by Elzie Ball, Nathaniel Code, James Magee. (Compa, Elizabeth) (Entered: 06/20/2016)
344 Motion to Correct Transcript filed by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Proposed Pleading; Order)(White, Winston) Modified on 6/21/2016 to edit text. (EDC). (Entered: 06/21/2016)
346 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Evidentiary Hearing hearing before Judge Chief Brian A. Jackson held on 6−15−16. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

07/06/2016 07/06/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/11/2016. Redacted Transcript Deadline set for 7/21/2016. Release of Transcript Restriction set for 9/19/2016. (Smith−Neely, Clare) (Entered: 06/23/2016)
347 ORDER granting 344 Motion to Correct Transcript. Signed by Chief Judge Brian A. Jackson on 07/06/2016. (NLT) (Entered: 07/06/2016)
348 NOTICE OF FILING OF OFFICIAL TRANSCRIPT/corrected pages of Proceedings Page 52 of the Motion Hearing hearing before Judge Chief Brian A. Jackson held on 5−20−16. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

07/07/2016 07/08/2016 07/08/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/25/2016. Redacted Transcript Deadline set for 8/3/2016. Release of Transcript Restriction set for 10/3/2016. (Smith−Neely, Clare) (Entered: 07/06/2016)
349 MOTION Correct Transcript by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment, # 3 Proposed Order)(Montagnes, Mercedes) (Entered: 07/07/2016)
350 ORDER granting 349 Motion to Correct Transcript. Signed by Chief Judge Brian A. Jackson on 7/8/2016. (LLH) (Entered: 07/08/2016)
351 NOTICE OF FILING OF OFFICIAL TRANSCRIPT/corrected page of Proceedings. Page 275 of the Evidentiary hearing before Judge Chief Brian A. Jackson held on 6−15−16. Court Reporter: Clare Smith−Neely. Phone Number: 225−389−3565.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our

website at www.lamd.uscourts.gov.

07/11/2016
07/11/2016 07/11/2016 07/20/2016 07/21/2016 07/22/2016 07/26/2016
07/27/2016 07/29/2016 07/29/2016 08/01/2016 08/01/2016
08/01/2016 08/05/2016 08/05/2016 08/08/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/26/2016. Redacted Transcript Deadline set for 8/5/2016. Release of Transcript Restriction set for 10/3/2016. (Smith−Neely, Clare) (Entered: 07/08/2016)
352 STATUS REPORT of Special Master Paul J. Hebert by Paul J. Hebert. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Hebert, Paul) (Attachments 1−8 replaced on 7/12/2016) (EDC). Modified on 7/12/2016 to rotate pages(EDC) (Entered: 07/11/2016)
353 Post−Trial Brief by All Defendants. (Guillot, Grant) Modified on 7/12/2016 to edit text.(EDC). (Entered: 07/11/2016)
354 Post−Evidentiary Hearing Brief by All Plaintiffs. (Montagnes, Mercedes) Modified on 7/12/2016 to edit text. (EDC). (Entered: 07/11/2016)
355 Notice to Counsel: Status Conference set for 8/1/2016 at 03:00 PM in chambers before Chief Judge Brian A. Jackson. This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 07/20/2016)
356 MOTION for James M. Lee to Withdraw as Attorney by All Plaintiffs. (Attachments: # 1 Proposed Pleading;)(Lee, James) Modified to substitute documents per rec. doc. 363 on 8/8/2016 (SGO). (Entered: 07/21/2016)
MOTION(S) REFERRED: 356 MOTION for James M. Lee to Withdraw as Attorney . This motion is now pending before the USMJ. (EDC) (Entered: 07/22/2016)
357 MOTION for Leave to Substitute Previously Filed Motion to Withdraw as Counsel of Record by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Revised Motion to Withdraw, # 3 Proposed Pleading;)(Lee, James) Modified on 7/27/2016 to edit the text (TNB). (Entered: 07/26/2016)
Motions No Longer Referred: 356 MOTION for James M. Lee to Withdraw as Attorney . This motion is now pending before the USDJ. (BLR) (Entered: 07/27/2016)
358 MOTION to Enroll Mary E. Roper as Additional Attorney by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Proposed Pleading; Proposed Order)(Guillot, Grant) (Entered: 07/29/2016)
MOTION(S) REFERRED: 358 MOTION to Enroll Mary E. Roper as Additional Attorney . This motion is now pending before the USMJ. (TNB) (Entered: 07/29/2016)
Motions No Longer Referred: 358 MOTION to Enroll Mary E. Roper as Additional Attorney . This motion is now pending before the USDJ. (NLT) (Entered: 08/01/2016)
359 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Status Conference held on 8/1/2016. Matter discussed. As instructed by the Court, Counsel shall produce data to Special Master Hebert within 48 hours of this conference. Hearing is set for 8/8/2016 at 2:00 p.m. in Courtroom 2. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 08/01/2016)
Set/Reset Hearings: Evidentiary Hearing set for 8/8/2016 at 02:00 PM in Courtroom 2 before Chief Judge Brian A. Jackson. (PJH) (Entered: 08/01/2016)
360 Joint STIPULATION of Facts by Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Exhibit Email Communication, # 2 Exhibit Email Communication)(Hilburn, James) (Entered: 08/05/2016)
361 MOTION to Allow Witness Testimony by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order)(Hilburn, James) Modified on 8/8/2016 to edit text (ELW). (Entered: 08/05/2016)
362 ORDER granting 358 Motion to Enroll Mary E. Roper as Additional Attorney for Defendants. Added attorney Mary E. Roper for Louisiana Department of Public Safety and Corrections, et al.. Signed by Chief Judge Brian A. Jackson on 8/8/2016. (This is a

08/08/2016 08/08/2016
08/09/2016 08/09/2016 08/11/2016 08/11/2016 08/20/2016

TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 08/08/2016)
363 ORDER granting 357 for Leave to Substitute Previously Filed Motion to Withdraw as Counsel of Record. Signed by Chief Judge Brian A. Jackson on 08/08/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (NLT) (Entered: 08/08/2016)
367 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Evidentiary Hearing held on 8/8/2016. The Court overrules State's objection (Doc. 360) to the introduction of evidence related to implementation of post−hearing remedial measures. Special Master Paul Hebert is sworn and testifies. Evidentiary hearing to address the sustainability of State's new remedial measures is set on 8/22/2016 at 03:00 PM in Courtroom 2 before Chief Judge Brian A. Jackson. Motion for Evidentiary Hearing Allowing Witness Testimony filed by Defendants (Doc. 361) is GRANTED. Proffer of testimony of Frank Thompson is read into the records by Defendants. Frank Thompson shall be permitted to testify as an expert at the 8/22/2016 hearing. Special Master Paul Hebert shall retain an independent HVAC expert who shall be permitted to examine the conditions on Tier C and testify as to the sustainability of the State's new remedial measures at the 8/22/2016 hearing. Plaintiffs have the right to have their own expert testify at the 8/22/2016 hearing to the extent that they wish to do so. (Court Reporter C. Smith−Neely.) (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 08/11/2016)
364 TRANSCRIPT REQUEST by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections for proceedings held on August 8, 2016 before Judge Brian A. Jackson.. (Guillot, Grant) (Main Document 364 replaced on 8/9/2016) (EDC). Modified on 8/9/2016 to flatten the pages. (EDC). (Entered: 08/09/2016)
365 TRANSCRIPT REQUEST by Elzie Ball for proceedings held on August 8, 2016 before Judge Brian A. Jackson.. (Compa, Elizabeth) (Entered: 08/09/2016)
366 TRANSCRIPT REQUEST by Paul J. Hebert for proceedings held on 08/08/2016 before Judge Jackson.. (Hebert, Paul) (Entered: 08/11/2016)
368 ORDER granting 356 Motion to Withdraw James M. Lee as Attorney for Plaintiffs. Signed by Chief Judge Brian A. Jackson on 8/11/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 08/11/2016)
369 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Evidentiary Hearing hearing before Judge Brian A Jackson held on 08/08/2016. Court Reporter: C. Smith−Neely. Phone Number: 225−751−8111.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

08/22/2016 08/22/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/7/2016. Redacted Transcript Deadline set for 9/19/2016. Release of Transcript Restriction set for 11/15/2016. (NLT) (Entered: 08/20/2016)
372 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Evidentiary Hearing held on 8/22/2016. Continuation of Evidentiary Hearing held 8/8/2016. Appearances: Merceds Montagnes and Steven Scheckman for Plaintiffs; Mary Roper, Grant Guillot, James Hilburn, and Winston White for Defendants; and Special Master Paul J. Hebert. Shane M. Hernandez is sworn and testifies. Counsel presents argument to the Court. Matter is taken under advisement by the Court. (Court Reporter FTR.) (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 08/25/2016)
374 Expert Report by Shane M. Hernandez (PJH) (Entered: 08/26/2016)

08/24/2016
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370 TRANSCRIPT REQUEST by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections for proceedings held on August 22, 2016 before Judge Brian A. Jackson. (Guillot, Grant) Modified on 8/24/2016 to replace the main document in order to flatten the image (NLT). (Entered: 08/24/2016)
371 TRANSCRIPT REQUEST by Elzie Ball, Nathaniel Code, James Magee for proceedings held on August 22, 2016 before Judge Brian A. Jackson.. (Compa, Elizabeth) (Entered: 08/24/2016)
373 TRANSCRIPT REQUEST by Paul J. Hebert for proceedings held on 08−22−2016 before Judge Jackson.. (Hebert, Paul) (Entered: 08/26/2016)
375 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Evidentiary hearing before Judge Brian A. Jackson held on 08/22/2016. Court Reporter: Janice Russell. Phone Number: (757) 422−9089; e−mail: trussell31@tdsmail.com.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

09/02/2016
09/19/2016 11/09/2016 12/22/2016
12/27/2016 12/29/2016 01/05/2017 01/06/2017 01/18/2017

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/19/2016. Redacted Transcript Deadline set for 9/27/2016. Release of Transcript Restriction set for 11/25/2016. (Russell, J.) (Entered: 08/30/2016)
376 STATUS REPORT of Special Master by Paul J. Hebert. (Attachments: # 1 Attachment Exhibit 1, # 2 Attachment Exhibit A, # 3 Attachment Exhibit B, # 4 Attachment Exhibit D, # 5 Attachment Exhibit E, # 6 Attachment Exhibit F, # 7 Attachment Exhibit G, # 8 Attachment Exhibit H)(Hebert, Paul) (Attachment 2,3,4,5,6,7,& 8 replaced on 9/6/2016) Modified on 9/6/2016 to rotate pages (ELW). (Entered: 09/02/2016)
377 Ex Parte MOTION to Correct Transcript of August 8, 2016 hearing by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Attachment)(Roper, Mary) Modified on 9/20/2016 to edit text. (EDC). (Entered: 09/19/2016)
378 STATUS REPORT of Special Master by Paul J. Hebert. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I)(Hebert, Paul) (Entered: 11/09/2016)
379 RULING and ORDER granting in part and denying in part 315 First MOTION to Modify Injunctive Relief. The Defendants are Enjoined to implement the remedial measures under the Third Plan during any period in which the heat index in the death−row tiers exceeds 88 degrees Fahrenheit "as stated herein". Signed by Chief Judge Brian A. Jackson on 12/22/2016. (EDC) (Entered: 12/22/2016)
380 MOTION for Extension of Time to File Motion for Attorneys' Fees by All Plaintiffs. (Attachments: # 1 Attachment)(Montagnes, Mercedes) (Entered: 12/27/2016)
381 MOTION for Grant J. Guillot to Withdraw as Attorney by All Defendants. (Attachments: # 1 Proposed Pleading; Proposed Order)(Guillot, Grant) (Entered: 12/29/2016)
382 ORDER granting Unopposed Motion to Extend Deadline forAttorneys [sic] Fees (Doc. 380) filed by Plaintiffs is GRANTED.The deadline for Plaintiffs to file a Motionfor Attorneys Fees is EXTENDED to February 3, 2017. Signed by Chief Judge Brian A. Jackson on 1/5/2017. (PJH) (Entered: 01/05/2017)
383 RULING AND ORDER denying 377 Motion to Amend. Signed by Chief Judge Brian A. Jackson on 01/06/2017. (ELW) (Main Document 383 replaced on 1/9/2017) (NLT). (Entered: 01/09/2017)
384 ORDER granting 381 Motion to Withdraw as Attorney. Attorney Grant J. Guillot is withdrawn. Signed by Chief Judge Brian A. Jackson on 01/18/2017. (EDC) (Entered: 01/18/2017)

01/19/2017 01/20/2017 01/23/2017 01/26/2017 01/27/2017
02/03/2017
02/10/2017
02/14/2017 02/14/2017 02/14/2017 02/16/2017 02/24/2017 02/27/2017 03/02/2017 03/02/2017 03/03/2017

385 MOTION for LaToya D. Jordan to Withdraw as Attorney by Amy L McInnis, Edward Wade Shows, Jacqueline B Wilson. (Jordan, LaToya) (Entered: 01/19/2017)
MOTION(S) REFERRED: 385 MOTION for LaToya D. Jordan to Withdraw as Attorney . This motion is now pending before the USMJ. (NLT) (Entered: 01/20/2017)
386 NOTICE OF APPEAL to the USCA for the 5th Circuit by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. Filing fee $ 505, receipt number 053N−1517690. (White, Winston) (Entered: 01/23/2017)
387 ORDER granting 385 Motion to Withdraw as Counsel of Record. Attorney LaToya D. Jordan is withdrawn. Signed by Magistrate Judge Erin Wilder−Doomes on 1/26/2017. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 01/26/2017)
388 JUDGMENT in favor of Elzie Ball, James Magee, Nathaniel Code against Louisiana Department of Public Safety and Corrections, Burl Cain, James Cruz, James M. LeBlanc as to Plaintiff's claims under the Eighth Amendment to the United States Constitution. Signed by Chief Judge Brian A. Jackson on 01/27/2017. (NLT) (Entered: 01/27/2017)
389 Second MOTION to Set Attorneys' Fees and Costs Pursuant to 42 U.S.C. Section 1988 and Fed. R. Civ. P. 54(d) by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 2, # 3 Exhibit 3a, # 4 Exhibit 3b, # 5 Exhibit 3c, # 6 Exhibit 3d, # 7 Exhibit 3e, # 8 Exhibit 3f, # 9 Exhibit 4, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 7a, # 14 Exhibit 8a, # 15 Exhibit 8b, # 16 Exhibit 8c, # 17 Exhibit 8d, # 18 Exhibit 9, # 19 Exhibit 1)(Montagnes, Mercedes) Modified on 2/6/2017 to edit text. (EDC). (Entered: 02/03/2017)
390 TRANSCRIPT REQUEST by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood for proceedings held on 1−23−17 before Judge Chief Judge Brian Jackson, re 386 Notice of Appeal to the USCA for the 5th Circuit (White, Winston) (Main Document 390 replaced on 2/14/2017 in order to flatten the image) (NLT). (Entered: 02/10/2017)
391 MOTION to Enroll Jeffrey K. Cody as Additional Attorney by All Defendants. (Attachments: # 1 Proposed Pleading; Proposed Order)(Shows, Edmond) (Entered: 02/14/2017)
MOTION(S) REFERRED: 391 MOTION to Enroll Jeffrey K. Cody as Additional Attorney . This motion is now pending before the USMJ. (KAH) (Entered: 02/14/2017)
392 USCA Case Number 17−30052 for 386 Notice of Appeal to the USCA for the 5th Circuit filed by James Cruz, Burl Cain, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. (TMR) (Entered: 02/14/2017)
Motions No Longer Referred: 391 MOTION to Enroll Jeffrey K. Cody as Additional Attorney . This motion is now pending before the USDJ. (NLT) (Entered: 02/16/2017)
393 MOTION for Extension of Time to File Response to 389 Second MOTION for Attorney Fees by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Proposed Pleading; Order)(Jones, Carlton) (Main Document 393 replaced on 3/3/2017) (ELW). (Entered: 02/24/2017)
394 MOTION to Substitute Pleading by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. (Attachments: # 1 Proposed Pleading;, # 2 Proposed Pleading;, # 3 Proposed Pleading;)(Jones, Carlton) (Entered: 02/27/2017)
395 NOTICE of Order Issued by Special Master by Paul J. Hebert (Hebert, Paul) (Entered: 03/02/2017)
396 ORDER granting 394 Motion Substitute Pleading. Signed by Chief Judge Brian A. Jackson on 03/02/2017. (ELW) (Entered: 03/03/2017)
397 ORDER granting 391 Motion to Enroll Additional Attorney. Added attorney Jeffrey K. Cody for James Cruz, James M. LeBlanc, and Louisiana Department of Public

03/06/2017 03/06/2017
03/17/2017 03/20/2017
03/21/2017
03/23/2017
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Safety and Corrections. Signed by Chief Judge Brian A. Jackson on 03/02/2017. (EDC) (Entered: 03/03/2017)
Record on Appeal #17−30052 Electronically Certified regarding 386 Notice of Appeal to the USCA for the 5th Circuit. US Court of Appeals notified of certification. (TMR) (Entered: 03/06/2017)
398 Electronic Access to the Record on Appeal is now available through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 03/06/2017)
399 STRICKEN FROM THE RECORD MEMORANDUM in Opposition to 389 Second MOTION for Attorney Fees filed by All Defendants. (Attachments: # 1 Exhibit A)(Jones, Carlton) Modified on 3/27/2017 to remove the document as it has been stricken in accordance with record document 402 (KAH). (Entered: 03/17/2017)
400 NOTICE OF NON−COMPLIANCE with LR 7(g) as to 399 Memorandum in Opposition to Motion. REQUIRED CORRECTION: A combined Motion for Leave to Exceed the Page Limits and Motion to Strike the Incorrect Pleading must filed within 24 hours of this notice. Otherwise, the original filing may be stricken by the Court without further notice. (KAH) (Entered: 03/20/2017)
401 MOTION to Strike 399 Memorandum in Opposition to Motion for Attorneys' Fees and Costs and for Leave to File Memorandum in Excess of Page Limitation by All Defendants. (Attachments: # 1 Proposed Pleading; Memorandum in Opposition, # 2 Proposed Pleading; Exhibit A)(Jones, Carlton) Modified on 3/21/2017 to edit text. (EDC). (Entered: 03/21/2017)
402 ORDER GRANTING 393 MOTION for Extension of Time to File Response to 389 Second MOTION for Attorney Fees and GRANTING 401 MOTION to Strike 399 Memorandum in Opposition to Motion for Attorneys' Fees and Costs and for Leave to File Memorandum in Excess of Page Limitation. Signed by Chief Judge Brian A. Jackson on 3/22/2017. (KAH) (Entered: 03/23/2017)
403 MEMORANDUM in Opposition to 389 Second MOTION for Attorney Fees . (Attachments: # 1 Exhibit)(KAH) Modified on 3/28/2017 to edit the file date (NLT). (Entered: 03/27/2017)
404 Initial Report of Special Master Paul J. Hebert for the 2017 Heat Index Monitoring Period. (Attachments: # 1 Exhibit)(Hebert, Paul) Modified on 4/7/2017 to edit the text (KAH). (Entered: 04/06/2017)
405 MOTION for Leave to File Reply by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Attachment)(Montagnes, Mercedes) (Entered: 04/07/2017)
406 MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Exhibit)(Montagnes, Mercedes) (Entered: 04/07/2017)
407 MOTION for Elizabeth Compa to Withdraw as Attorney by All Plaintiffs. (Compa, Elizabeth) (Entered: 04/12/2017)
MOTION(S) REFERRED: 407 MOTION for Elizabeth Compa to Withdraw as Attorney . This motion is now pending before the USMJ. (KAH) (Entered: 04/13/2017)
408 ORDER granting 405 MOTION for Leave to File Reply and 406 Motion for Leave to File Excess Pages. Signed by Chief Judge Brian A. Jackson on 4/12/2017. (EDC) (Entered: 04/13/2017)
409 REPLY MEMORANDUM in Support of 389 Plaintiff's Second MOTION for Attorney Fees filed by Elzie Ball, Nathaniel Code, James Magee. (EDC) Modified on

04/13/2017 05/02/2017 05/02/2017 05/03/2017 05/05/2017
05/05/2017 05/08/2017
05/12/2017
05/12/2017 05/22/2017 05/22/2017
05/23/2017

4/13/2017 to correct date.(EDC). (Entered: 04/13/2017)
Motions No Longer Referred: 407 MOTION for Elizabeth Compa to Withdraw as Attorney . This motion is now pending before the USDJ. (SGO) (Entered: 04/13/2017)
410 Second MOTION to Maintain the Status Quo by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11)(Montagnes, Mercedes) Modified to edit text on 5/3/2017 (SGO). (Entered: 05/02/2017)
411 MOTION for Expedited Hearing on 410 Second MOTION for Status Quo by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment)(Montagnes, Mercedes) (Entered: 05/02/2017)
412 MOTION Supplement Second Motion for Status Quo by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Attachment)(Montagnes, Mercedes) (Entered: 05/03/2017)
413 ORDER: The 410 Second MOTION to Maintain the Status Quo is DEFERRED, pending a report from the Special Master. The 411 Motion for Expedited Consideration of Plaintiffs' Second Motion to Maintain the Status Quo is GRANTED, and the 412 Motion for Leave toSupplement Plaintiffs' Second Motion to Maintain the Status Quo is GRANTED. Signed by Chief Judge Brian A. Jackson on 5/5/2017. (LLH) (Entered: 05/05/2017)
414 SUPPLEMENTAL MEMORANDUM in Support of 410 Second MOTION for Status Quo filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(LLH) (Entered: 05/05/2017)
415 NOTICE of Order Issued by Special Master Paul J. Hebert: Defendants shall provide the Special Master and Plaintiffs' counsel with a report, by May 10, 2017 (extended to May 12, 2017 at noon), detailing information on the type of exhaust ventilation system which is utilized in Tier C, along with details regarding how the system functions, its operational status and its purpose by Paul J. Hebert (Hebert, Paul) Modified on 5/12/2017 to edit the text (NLT). (Entered: 05/08/2017)
417 MEMORANDUM in Opposition to Second Motion to Maintain the Status Quo filed by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 H)(White, Winston) (Attachment 3, 6, 7, 8 replaced on 5/15/2017) (ELW). Modified on 5/15/2017 to edit text and rotate pages (ELW). (Entered: 05/12/2017)
418 MOTION for Leave to File Video Recordings of the Ventilation System of Death Row by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Pleading; Order)(White, Winston) Modified on 5/15/2017 to edit text (ELW). (Entered: 05/12/2017)
Supplemental Record on Appeal #17−30052 Electronically Certified regarding 386 Notice of Appeal to the USCA for the 5th Circuit. US Court of Appeals notified of certification. (TMR) (Entered: 05/22/2017)
419 Electronic Access to the Supplemental Record on Appeal is now available through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 05/22/2017)
420 MOTION to Change Status Quo by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;)(White, Winston) (Entered: 05/23/2017)

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421 ORDER granting 418 MOTION for Leave to File Video Recording of the Ventilation System of Death Row. Signed by Chief Judge Brian A. Jackson on 05/25/2017. (ELW) (Entered: 05/25/2017)
422 MOTION for Leave to File Reply to 417 Opposition to 410 Second Motion to Maintain the Status Quo by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Affidavit Declaration, # 4 Exhibit, # 5 Attachment Proposed Order)(Scheckman, Steven) Modified on 5/26/2017 to edit the text (KAH). (Entered: 05/26/2017)
423 Motion for Leave to File Reply to 417 Opposition to 410 Second Motion to Maintain the Status Quo In Excess Of Page Limitation by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Affidavit Declaration, # 4 Exhibit, # 5 Attachment Proposed Order)(Scheckman, Steven) Modified on 5/26/2017 to edit the text (KAH). (Entered: 05/26/2017)
424 REPORT of Special Master for May 2017 by Paul J. Hebert. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Hebert, Paul) Modified on 5/26/2017 to edit the text (KAH). (Entered: 05/26/2017)
425 NOTICE of Manual Attachment by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections (Attachments: # 1 Exhibit A)(White, Winston) (Entered: 06/01/2017)
426 ORDER granting 420 MOTION to Change Status Quo. The Court's prior Orders do not act as a bar to Defendants' permitting Plaintiffs to participate in the pilot program that allows death−row tier inmates increased time outside of their cells and with other inmates. Signed by Chief Judge Brian A. Jackson on 6/1/2017. (LLH) (Entered: 06/01/2017)
427 Supplement to May 2017 STATUS REPORT of Special Master by Paul J. Hebert. (Attachments: # 1 Exhibit A)(Hebert, Paul) Modified on 6/16/2017 to edit the text (KAH). (Entered: 06/15/2017)
428 Defendants' Position Statement Concerning 427 May 23, 2017 Report of Plaintiffs' Expert, David Garon filed by All Defendants. (Attachments: # 1 Attachment, # 2 Attachment)(Roper, Mary) Modified on 6/16/2017 to edit the text (KAH). (Entered: 06/15/2017)
429 REPLY to 428 Defendants' Position Statement Concerning the May 23, 2017 Report of Plaintiffs' Expert David Garon filled by All Plaintiffs. (Attachments: # 1 Exhibit Expert Report)(Scheckman, Steven) Modified on 6/19/2017 to edit text. (EDC). (Entered: 06/16/2017)
430 MOTION for E. Wade Shows to Withdraw as Attorney by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Roper, Mary) (Entered: 06/16/2017)
431 ORDER granting 422 MOTION for Leave to File Reply to Opposition to Second Motion to Maintain the Status Quo AND granting 423 Motion for leave to File Reply to Opposition to Second Motion to Maintain the Status Quo In Excess Of Page Limitation. Signed by Chief Judge Brian A. Jackson on 6/23/2017. (ELW) (Entered: 06/23/2017)
432 REPLY MEMORANDUM in Support of 410 Second MOTION for Status Quo filed by All Plaintiffs. (Attachments: # 1 Attachment, # 2 Exhibit)(ELW) (Entered: 06/23/2017)
433 REPORT of Special Master for June 2017 by Paul J. Hebert. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Hebert, Paul) Modified to replace attachments 1 and 3 and edit the text on 6/23/2017 (KAH). (Entered: 06/23/2017)
434 OBJECTIONS to 433 June 23, 2017 Report of the Special Master filed by All Plaintiffs. (Scheckman, Steven) Modified on 7/12/2017 to edit text. (EDC). (Entered: 07/11/2017)
435 MOTION to Strike 434 Response Plaintiffs' Objections to June 23, 2017 Report of the Special Master by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order)(White, Winston) (Entered: 07/19/2017)

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03/21/2018

436 MEMORANDUM in Opposition to Defendants' Motion to Strike Record Document 434 filed by All Plaintiffs. (Scheckman, Steven) Modified on 7/21/2017 to edit text. (EDC). Modified on 7/21/2017 to create entry relationship. (EDC). (Entered: 07/21/2017)
437 REPORT of Special Master For July 2017 by Paul J. Hebert. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Hebert, Paul) Modified to edit the text and replace attachment 5 on 8/2/2017 (KAH). (Entered: 08/02/2017)
438 STATUS REPORT of Special Master by Paul J. Hebert. (Attachments: # 1 Exhibit 1)(Hebert, Paul) Modified on 9/14/2017 to rotate and replace exhibit (LLH). (Entered: 09/14/2017)
439 STATUS REPORT of Special Master for September 2017 by Paul J. Hebert. (Hebert, Paul) Modified to edit the text on 10/13/2017 (KAH). (Entered: 10/12/2017)
440 ORDER granting 407 Motion to Withdraw as Attorney. Attorney Elizabeth Compa is withdrawn. Signed by Chief Judge Brian A. Jackson on 10/12/2017. (LLH) (Entered: 10/12/2017)
441 ORDER granting 430 Motion to Withdraw as Attorney. Attorney E. WADE SHOWS is withdrawn. Signed by Chief Judge Brian A. Jackson on 10/16/2017. (ELW) (Entered: 10/16/2017)
442 ORDER denying 435 Motion to Strike. ORDERED that Defendants may file a response to Plaintiffs' Objections to June 23, 2017 Report of the Special Master (Doc. 434), no later than the 30th day of November, 2017.Signed by Chief Judge Brian A. Jackson on 11/13/2017. (ELW) (Entered: 11/13/2017)
443 Joint MOTION to Withdraw and Substitute Counsel of Record by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Proposed Pleading;)(Jones, Carlton) Modified to edit the text on 11/20/2017 (KAH). (Entered: 11/17/2017)
444 ORDER granting 443 Motion to Substitute Attorney. Ross A. Dooley for James Cruz,Ross A. Dooley for James M. LeBlanc,Ross A. Dooley for Louisiana Department of Public Safety and Corrections replacing Carlton Jones, III and Johanna A. Posada. Signed by Chief Judge Brian A. Jackson on 11/20/2017. (LLH) (Entered: 11/20/2017)
445 Final Report of Special Master Paul J. Hebert for the 2017 Heat Index Monitoring Period by Paul J. Hebert. (Hebert, Paul) Modified to edit text on 11/28/2017 (SGO). (Entered: 11/27/2017)
446 RESPONSE to Plaintiffs' Objections to June 23, 2017 Report of Special Master filed by All Defendants. (Cody, Jeffrey) (Entered: 11/30/2017)
447 MOTION for Leave to File Reply in Support of Objections to June 23, 2017 Report of the Special Master by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Attachment Order)(Montagnes, Mercedes) Modified on 12/15/2017 to edit text (ELW). (Entered: 12/15/2017)
448 ORDER granting 447 MOTION for Leave to File Reply Support of Objections to June 23, 2017 Report of the Special Master. Signed by Chief Judge Brian A. Jackson on 12/19/2017. (ELW) (Entered: 12/19/2017)
449 Reply in Support of 433 Objection to June 23, 2017 Report of the Special Master filed by All Plaintiffs. (ELW) (Entered: 12/19/2017)
450 RULING and ORDER denying 410 Second MOTION to Maintain the Status Quo. The Court finds that Defendants did not fail to maintain the status quo. 433 Report of Special Master Paul J. Hebert for June 2017 is ADOPTED as the Court's opinion herein. Plaintiff's request for attorney's fees is DENIED; however, Defendants are ordered to pay fees and costs of Plaintiff's expert, David Garon, for his work and site visit. Signed by Chief Judge Brian A. Jackson on 12/21/2017. (EDC) (Entered: 12/22/2017)
451 MANDATE of USCA as to 386 Notice of Appeal to the USCA for the 5th Circuit: It is ordered and adjudged that the judgment of the District Court is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the

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opinion of this Court. IT IS FURTHER ORDERED that plaintiffs−appellees pay to defendantsappellants the costs on appeal to be taxed by the Clerk of this Court. (Attachments: # 1 Bill of Costs)(SGO) (Entered: 03/21/2018)
MOTION(S) REFERRED: 389 Second MOTION for Attorney Fees . This motion is now pending before the USMJ. (SWE) (Entered: 03/21/2018)
452 Notice to Counsel: Status Conference to discuss the Mandate of the Fifth Circuit Court of Appeals filed 3/21/2018 is set for 4/18/2018 at 02:00 PM in Courtroom 2 before Chief Judge Brian A. Jackson.

Evidence, in electronic format, shall be provided in accordance with Local Rule 79 and Administrative Procedures.

03/23/2018 03/26/2018 03/27/2018 05/07/2018 05/07/2018 05/10/2018
05/10/2018 05/25/2018 05/25/2018 05/29/2018 06/01/2018 06/01/2018

(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 03/22/2018)
453 MOTION to Continue Status Conference by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment)(Montagnes, Mercedes) (Entered: 03/23/2018)
454 ORDER granting 453 Motion to Continue Status Conference. Status Conference RESET for 6/1/2018 at 02:00 PM in Courtroom 2 before Chief Judge Brian A. Jackson. Signed by Chief Judge Brian A. Jackson on 3/26/2018. (SGO) (Entered: 03/26/2018)
455 ORDER REFERRING MOTION to USMJ: 389 Second MOTION for Attorney Fees filed by Nathaniel Code, Elzie Ball, James Magee is hereby REFERRED to United States Magistrate Judge for REPORT AND RECOMMENDATION. Signed by Chief Judge Brian A. Jackson on 3/27/28. (PJH) (Entered: 03/27/2018)
456 MOTION for Leave to File Supplemental Opposition Memorandum to Plaintiff's Second Motion for Attorney's Fees and Costs by All Defendants. (Attachments: # 1 Attachment Proposed Order, # 2 Proposed Pleading;)(Dooley, Ross) Modified to edit text on 5/7/2018 (SGO). (Entered: 05/07/2018)
MOTION(S) REFERRED: 456 MOTION for Leave to File Supplemental Opposition Memorandum to Plaintiff's Second Motion for Attorney's Fees and Costs. This motion is now pending before the USMJ. (SGO) (Entered: 05/07/2018)
457 ORDER granting 456 MOTION for Leave to File Supplemental Opposition Memorandum to Plaintiff's Second Motion for Attorney's Fees and Costs. Clerk's office is directed to filed R. Doc. 456−2 into the record. Signed by Magistrate Judge Erin Wilder−Doomes on 5/10/2018. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BLR) (Entered: 05/10/2018)
458 Supplemental Opposition to 389 Second Application for Attorney's Fees filed by James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (SGO) (Entered: 05/11/2018)
459 MOTION for Leave to File Supplementary Reply by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Attachment Order)(Montagnes, Mercedes) (Entered: 05/25/2018)
460 MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;, # 3 Attachment Proposed Order)(Montagnes, Mercedes) (Entered: 05/25/2018)
MOTION(S) REFERRED: 459 MOTION for Leave to File Supplementary Reply , 460 MOTION for Leave to File Excess Pages . This motion is now pending before the USMJ. (LLH) (Entered: 05/29/2018)
461 STATUS REPORT of Special Master by Paul J. Hebert. (Attachments: # 1 Exhibit A)(Hebert, Paul) (Entered: 06/01/2018)
463 Minute Entry for proceedings held before Chief Judge Brian A. Jackson: Status Conference held on 6/1/2018. Present: Paul J. Hebert, Special Master, Mercedes Montagnes, Counsel for Plaintiffs, and Jeffrey Cody, Mary Roper, and Colin Clark,

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08/14/2018

Counsel for Defendants. Current status of matter discussed. Counsel informed the Court that the parties are currently in discussions and that the Defendants have agreed to maintain the current status. Counsel and Special Master Hebert to continue discussions. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (PJH) (Entered: 06/05/2018)
462 Amended STATUS REPORT of Special Master by Paul J. Hebert. (Attachments: # 1 Corrected Exhibit A)(Hebert, Paul) (Entered: 06/04/2018)
464 ORDER granting 459 Motion for Leave to file Supplemental Reply Memorandum of Law in Support of Plaintiffs' 389 Motion to set Attorney's Fees and Costs and 460 Motion for Leave to Exceed the Page Limitation. The clerk's office is directed to file R. Doc. 459−2 into the record. Signed by Magistrate Judge Erin Wilder−Doomes on 6/7/2018. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BLR) Modified to edit text on 6/7/2018 (BLR). (Entered: 06/07/2018)
465 SUPPLEMENTAL REPLY Memorandum of Law in Support of 389 Second MOTION to Set Attorney Fees and Costs filed by Plaintiff'. (LLH) (Entered: 06/08/2018)
466 SATISFACTION OF JUDGMENT by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood. (Cody, Jeffrey) (Entered: 07/05/2018)
467 CERTIFICATE OF SERVICE by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Angela Norwood re 466 Satisfaction of Judgment (Cody, Jeffrey) (Entered: 07/06/2018)
468 NOTICE AND ORDER TO COUNSEL: Pending before the Court is Plaintiffs' 389 Second Motion to Set Attorney's Fees and Costs Pursuant to 42 U.S.C. § 1998 and Fed. R. Civ. P. 54(d) by All Plaintiffs. Lead counsel for all parties are ordered to appear at an in−person status conference on August 14, 2018 at 01:00 PM in chambers before Magistrate Judge Erin Wilder−Doomes. Signed by Magistrate Judge Erin Wilder−Doomes on 7/10/2018. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(BLR) Modified to edit text on 7/10/2018 (BLR). (Entered: 07/10/2018)
Set/Reset Deadlines/Hearings: Status Conference set for 8/14/2018 at 01:00 PM in chambers before Magistrate Judge Erin Wilder−Doomes. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry) (BLR) (Entered: 07/10/2018)
469 MOTION for Leave to File Supplement to Second Motion for Attorneys' Fees and Costs by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Attachment Proposed Order)(Montagnes, Mercedes) (Entered: 08/08/2018)
MOTION(S) REFERRED: 469 MOTION for Leave to File Supplement to Second Motion for Attorneys' Fees and Costs. This motion is now pending before the USMJ. (LLH) (Entered: 08/08/2018)
470 ORDER: In light of the parties' in−person status conference with the Court scheduled for August 14, 2018 pursuant to the Court's Order at R. Doc. 468 , IT IS ORDERED that Plaintiffs' 469 Motion for Leave to file Supplement to Second Motion for Attorneys' Fees and Costs is HEREBY DENIED, WITHOUT PREJUDICE to Plaintiffs re−filing it after the parties' in−person status conference with the Court. IT IS FURTHER ORDERED that no further pleadings are to be filed in connection with Plaintiffs' 389 Motion to Set Attorney's fees and Costs prior to the parties' in−person status conference on August 14, 2018. Signed by Magistrate Judge Erin Wilder−Doomes on 8/9/2018. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BLR) (Entered: 08/09/2018)
473 Minute Entry/Status Conference Report and Order for proceedings held before Magistrate Judge Erin Wilder−Doomes: Status Conference held on 8/14/2018. Counsel discussed the status of the pending Plaintiffs' 389 Second Motion to Set Attorneys'Fees and Costs Pursuant to 42 U.S.C. § 1998 and Fed. R. Civ. P. 54(d). Plaintiffs stated they

08/15/2018 08/16/2018
08/24/2018 11/05/2018 11/09/2018 11/15/2018 11/19/2018 11/20/2018
12/03/2018 02/13/2019 02/14/2019 02/19/2019 03/14/2019 03/18/2019 03/19/2019

are going to withdraw the Motion without prejudice to re−filing it if the parties are unable to reach an amicable resolution of the issues raised in the Motion. (LLH) (Entered: 08/17/2018)
471 MOTION to Withdraw 389 Second MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment Order)(Montagnes, Mercedes) (Entered: 08/15/2018)
472 ORDER: IT IS HEREBY ORDERED that Plaintiffs Elzie Ball, Nathanial Cole, and James Magee's 471 Motion to Withdraw Second Motion for Attorney's Fees and Costs at R. Doc. 389 is GRANTED, without prejudice to Plaintiffs re−filing it at a later date, if necessary. Prior to re−filing such motion, Plaintiffs shall seek a status conference with the Court. Signed by Magistrate Judge Erin Wilder−Doomes on 8/16/2018. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BLR) (Entered: 08/16/2018)
474 Second REPORT of Special Master for the 2018 Heat Index Monitoring Period (August 24, 2018) by Paul J. Hebert. (Hebert, Paul) Modified on 8/24/2018 to edit text (SGO). (Entered: 08/24/2018)
475 Joint MOTION for Conditional Dismissal by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Attachment Proposed Order)(Montagnes, Mercedes) Modified on 11/7/2018 to edit text (LLH). (Entered: 11/05/2018)
476 Final REPORT of Special Master for the 2018 Heat Index Monitoring Period (November 9, 2018) by Paul J. Hebert. (Hebert, Paul) Modified on 11/13/2018 to edit the text (NLT). (Entered: 11/09/2018)
477 SUPREME COURT ORDER from USCA received dismissing petition for writ of certiorari filed by Appellees Mr. James Magee, Mr. Elzie Ball and Mr. Nathaniel Code in 17−30052 on 11/14/2018. (KAH) (Entered: 11/15/2018)
478 MOTION for Status Conference on Attorneys' Fees and Costs by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment)(Montagnes, Mercedes) (Entered: 11/19/2018)
479 ORDER granting 478 Motion to set a Status Conference. Status Conference set for 12/3/2018 at 10:00 AM in chambers before Magistrate Judge Erin Wilder−Doomes. Signed by Magistrate Judge Erin Wilder−Doomes on 11/20/2018. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BLR) (Entered: 11/20/2018)
480 Status Conference Report and Order/Minute Entry for proceedings held before Magistrate Judge Erin Wilder−Doomes: Status Conference held on 12/3/2018. The plaintiffs shall file any re−urged motion for attorney fees no later than 3/15/2019. (NLT) (Entered: 12/04/2018)
481 MOTION for Mary E. Roper to Withdraw as Attorney by All Defendants. (Attachments: # 1 Attachment Proposed Order)(Roper, Mary) (Entered: 02/13/2019)
MOTION(S) REFERRED: 481 MOTION for Mary E. Roper to Withdraw as Attorney . This motion is now pending before the USMJ. (SWE) (Entered: 02/14/2019)
482 ORDER granting 481 Motion to Withdraw Attorney Mary E. Roper as Attorney. Signed by Magistrate Judge Erin Wilder−Doomes on 2/19/2019. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BLR) (Entered: 02/19/2019)
483 Unopposed MOTION for Extension of Time to File Plaintiffs' Re−Urged Application for Attorney's Fees and Costs by All Defendants. (Attachments: # 1 Attachment Order)(Dooley, Ross) (Entered: 03/14/2019)
MOTION(S) REFERRED: 483 Unopposed MOTION for Extension of Time to File Plaintiffs' Re−Urged Application for Attorney's Fees and Costs. This motion is now pending before the USMJ. (KAH) (Entered: 03/18/2019)
484 ORDER granting 483 Unopposed Motion for Extension of Deadline for Plaintiffs to File Second Application for Attorney's Fees and Costs. Plaintiffs shall file any re−urged motion for attorneys fees and costs on or before April 15, 2019. Any

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opposition or reply briefs shall be filed in accordance with Local Rule 7(f). Signed by Magistrate Judge Erin Wilder−Doomes on 3/19/2019. (KAH) (Entered: 03/19/2019)
485 NOTICE of Settlement Plaintiffs' 389 Second Motion to Set Attorneys' Fees Motion by Elzie Ball, Nathaniel Code, James Magee (Montagnes, Mercedes) Modified on 4/16/2019 to edit the text (SWE). (Entered: 04/15/2019)
486 ORDER granting 475 Joint MOTION for Conditional Dismissal and that this case is conditionally dismissed and shall be placed on the inactive docket pending substantial compliance with the agreement for a period of one year from the date on which the agreement was signed (doc. 475−1). Signed by Judge Brian A. Jackson on 04/18/2019. (NLT) Modified on 4/23/2019 to edit text (LLH). (Entered: 04/18/2019)
487 Addendum to SETTLEMENT AGREEMENT by Elzie Ball, Nathaniel Code, James Magee. (Montagnes, Mercedes) Modified on 5/31/2019 to edit the text (SWE). (Entered: 05/30/2019)
488 Joint MOTION to Dismiss Special Master by All Defendants. (Attachments: # 1 Order)(Cody, Jeffrey) (Entered: 06/05/2019)
489 Report of Special Master Paul J. Hebert For The 2019 Heat Index Monitoring Period by Paul J. Hebert. (Hebert, Paul) Modified on 6/5/2019 to edit text (LT). (Entered: 06/05/2019)
490 ORDER granting 488 Joint Motion to Dismiss Special Master. Signed by Judge Brian A. Jackson on 06/13/2019. (ELW) (Entered: 06/17/2019)
491 Second MOTION for Leave to Remove Awnings filed unopposed by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Attachment Proposed ORder)(Clark, Colin) (Main Document 491 replaced on 7/11/2019) (EDC). Modified on 7/11/2019 in accordance with record document 493. (EDC). (Entered: 07/01/2019)
492 MOTION to Substitute 491 Second MOTION for Leave to Remove Awnings filed unopposed by Burl Cain, James Cruz, James M. LeBlanc, Louisiana Department of Public Safety and Corrections. (Attachments: # 1 Attachment Proposed Order, # 2 Proposed Pleading; Substituted Motion, # 3 Attachment Substituted Proposed Order)(Clark, Colin) Modified on 7/2/2019 to link the motions and edit the docket text (KMW). (Entered: 07/02/2019)
493 ORDER granting 492 MOTION to Substitute Second Motion for Leave to Remove Awnings. Signed by Judge Brian A. Jackson on 7/10/2019. (EDC) (Entered: 07/11/2019)
494 MOTION by Former Special Master To Be Removed from List of Parties/Counsel by Paul J. Hebert. (Attachments: # 1 Proposed Order)(Hebert, Paul) (Entered: 07/17/2019)
495 ORDER granting 491 Second MOTION for Leave to Remove Awnings. Defendants are granted leave to remove the exterior awnings installed at Louisiana State Penitentiary's Death Row Facility. Signed by Judge Brian A. Jackson on 7/19/2019. (KAH) (Entered: 07/19/2019)
496 ORDER granting 494 Motion by Former Special Master To Be Removed from List of Parties/Counsel. Paul J. Hebert, the former Special Master, be removed from the list of parties/counsel in this proceeding. The Court is indebted to Mr. Hebert for his commitment to assisting the Court and all Parties in fashioning a fair and appropriate resolution of this matter. Signed by Judge Brian A. Jackson on 7/23/2019. (EDC) (Entered: 07/23/2019)

 
 No. 13A1286 Title:
Docketed: Lower Ct: Case Nos.:

Elzie Ball, et al., Applicants
v.
James LeBlanc, Secretary, Louisiana Department of Public Safety and Corrections, et al. June 30, 2014 United States District Court for the Middle District of Louisiana (3:13-cv-00368)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ Jun 30 2014 Application (13A1286) to vacate the stay entered by the United States Court
of Appeals for the Fifth Circuit on June 6, 2014, submitted to Justice Scalia. Jul 3 2014 Application (13A1286) denied by Justice Scalia.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~

Attorneys for Petitioners:

Walter Dellinger

O'Melveny & Myers LLP

(202) 3835319

1625 Eye Street, N.W.

Washington, DC 20006

Party name: Elzie Ball, et al.

Attorneys for Respondents:

James L. Hilburn

Shows, Cali & Walsh, LLP

628 St. Louis St.

Baton Rouge, LA 70802

Party name: James LeBlanc, Secretary, Louisiana Department of Public Safety and Corrections, et al.