Ball v. LeBlanc

• Decision Date: 31 January 2018
• Docket Number: No. 17-30052,17-30052
• Citation: 881 F.3d 346
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

881 F.3d 346

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.

No. 17-30052

United States Court of Appeals, Fifth Circuit.

Filed January 31, 2018

Mercedes Hardy Montagnes, Promise of Justice Initiative, New Orleans, LA, Nilay U. Vora, Jeffer Mangels Butler & Mitchell, L.L.P., Los Angeles, CA, for Plaintiffs-Appellees.

Colin Andrew Clark, Esq., Elizabeth Baker Murrill, Esq., Winston Eric White, Assistant Attorney Generals, Office of the Attorney General for the State of Louisiana, Jeffrey K. Cody, Esq., Mary E. Roper, Esq., Shows, Cali & Walsh, L.L.P., Baton Rouge, LA, for Defendants-Appellants.

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

881 F.3d 348

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 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) ). "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

881 F.3d 349

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 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 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

881 F.3d 350

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 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...