Case 6:17-cv-00166-RC-JDL Document 40 Filed 08/27/18 Page 1 of 2 PageID #: 186

UNITED STATES DISTRICT COURT
EASTERN DISTRICT of TEXAS
TYLER DIVISION
Douglas/ Henderson,
Walker, Burley, Martin,

Civil Action

No .

6 :17cv347

Civil Action

No .

6 :17cv320

V .

Civil Action

No .

6 :17cvl66

Davis, et . al -

Civil Action

No .

6 :17cv4 0

Civil Action

No .

6:l cv § »

REQUES FOR CLASS-CER IFIC TION - REQUEST FOR SPECIAL MAS ER
REQUES FOR JUDGE CLARK and M GISTRATE MI CHELL O VISIT COFFIELD UNIT
COMES NOW, Plaintiffs and similarly situated Prisoners, pursuant
to Rules - 23 and 24 and 53 of the Fed.R.Civ.P., and moves this Court
to certify these matters as a class-action, and appoint a Special Master,
as well as visit the Coffield Unit them-selves, in order to see and
feel what each of them are subjected to daily.
Plaintiffs and similarly situated Prisoners aver that class-certifi¬
cation is proper because thousands (1,000) will be affected; and the
request for a special Master has merit due to the complexity of the
'Federal Questions' and the volume of discovery, and dispositive issue
that the matter will generate.
Plaintiffs and similarly situated Prisoners make these requests
in light of COLE v. LIVINGSTON, No. 4:14cvl698, 2016 WL 328345 (S.D. Tex.

June 14, 2016), the attached Human Rights report (Deadly Heat in Texas
Prisons) from the University of Texas school of Law, and due to the
fact that the majority of those similarly situated Prisoners signed
below are taking medication, which the combination of the heat, sanita¬
tion, contaminated-water, sleep-deprivation causes a variety of physical
and mental injuries. The Human rights Clinic concludes ch r current
heat conditions in TDCJ Facilities also violate in ate's constitutional
right to be free from cruel and unusal punishment. Therefore, classcertification and appointment of a Special Master is the only mean ,
of protecting the interest of all members of the class.
Plaintiffs and similarly situated Prisoners, prays the Court will
"GRANT" this motion in all respects, but failing that would strongly
urge the Court to visit this unit and speak to us.
FOR SUCH' WE PRAY.

THE _ UN ERSIGNED,

ixOVYU

E/uW .

rVLi

ster

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 Case 6:17-cv-00166-RC-JDL Document 40 Filed 08/27/18 Page 2 of 2 PageID #: 187

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Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 2 of 37 PageID #: 189

This report does not represent the official positon ofthe School of La\i or ofiTisc inversity ofTexas, and
the views presented here reflect only the opinions ofthe individu l asshcrs *sg cm rise uman Rights Clinic.

1

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 3 of 37 PageID #: 190

Contents
Acronyms & Abbreviations _______

Executive

.

3

Summary

Introduction

4

__________

7

Texas Prison Inmates and Staff Are Exp sed to Dangerous Heat Conditions

8

Extreme Heat in TDCJ Facilities is Bstealthy

14

Texas Prisons Lack Adequate and Effective Policies to Protect Inmates from
Exposure to Extreme Heat and Beat-l iat
Injuries

17

Texas Lags Behind Other States m Pratectsig Inmates from Extreme Heat

19

Current Texas Prison Comfits©® se L't constitutional

22

Texas Prison Conditions Violate Saaates Human Rights

.....25

Texas Violates Human Rights GM tseos Regarding Detention Conditions 26
Texas Fails Its Duty to Pre nt Crset I human, or De rading Treatment 29
Conclusion and Recommendations.......™..........

.....34

2

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 4 of 37 PageID #: 191

Acronyms & Abbreviations

TDCJ

(In order of first appearance)
Texas Department of Criminal Justice

NWS

National Weather Service

CDC

Centers for Disease Control

ACA

American Correctional Association

OSHA

Occcupational Safety and Health Adrministration

TCJS

Texas Commission on Jail Standards

ASHRAE

American Society of Heating, Refrigerating and Air-Conditioning Engineers

ABA

American Bar Association

IACB0R

Inter-American Commission on Human Rights

ICCPR

International Covenant of Civil and Political Rights

TJDHR

United Nations Universal Declaration of Human Rights

AD RD M

American Declaration of the Rights and Duties of Man

lACtHR

Inter-American Court of Human Rights

CAT

Committee Against Torture

AC R

American Convention on Human Rights

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

OAS

Organization of American States

CPT

European Committee on the Prevention of Torture

UN

United Nations

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 5 of 37 PageID #: 192

Executive Summary

The Texas Department of Criminal Justice (TDCJ) is currently violating the human and
constitutional rights of inmates in Texas by exposing the to dangerously high temperatures and
extreme heat conditions. Extreme heat in TDCJ-run correctional facilities has long caused heatrelated injuries and deaths of inmates during the hot Texas summers. Since 2007, at least
fourteen inmates incarcerated in various TDCJ facilities across the state of Texas have died from
extreme heat exposure while imprisoned. Many of these inmates had preexisting health
conditions or were taking medications that rendered them heat-sensitive, yet properly cooled
living areas were not provided to them by the TDCJ. These fourteen victims, along with other
TDCJ prisoners and even TDCJ personnel, were and continue to be exposed to dangerously high
heat levels on a regular basis. This practice violates individuals human rights, particularly the
rights to health, life, physical integrity, and dignity.
In spite of repeated, serious, and egregious incidents, the TDCJ has yet to implement
measures that effectively mitigate heat-related injur} in inmate housing. While the TDCJ has
installed fans and allowed for ventilation in inmate living areas, the Centers for Disease Control
(CDC) has proven these measures to be ineffective in preventing heat-related injuries in very hot
and humid conditions, such as those present in TDCJ facilities. Despite these findings, TDCJ
facilities largely do not provide air conditioning to the living areas of the general inmate
population, many of whom are serving time for non-violent offenses. At the same time, the

TDCJ has spent money on air conditioning for its warden offices and for its armories.
Additionally, the TDCJ has not promulgated any maximum temperature policies for inmate
housing, even though the Texas Commission on Jail Standards and numerous other state
departments of corrections across the country have done so. As a result, TDCJ inmates continue

to suffer through Texas summers, and are forced to risk heatstroke and other heat-related injuries
while incarcerated with the TDCJ.
This Report, prepared by the Human Rights Clinic of the University of Texas School of
Law, concludes that current conditions in TDCJ facilities constitute a violation of Te as’s duty
to guarantee the rights to health, life, physical integrity, and dignity of detainees, as well as its
duty to prevent inhuman or degrading treatment of its inmates. These duties have been affirmed
by countless human rights bodies and instruments such as the United Nations Human Rights
Committee, the Universal Declaration of Human Rights, the Inter-American Commission on
Human Rights, and the A erican Declaration on the Rights and Duties of Man, to mention just a
few. Many international human rights decisions have found that extreme heat similar to
situations in Texas contributes to a finding of inhuman or degrading prison conditions. The
TDCJ’s continued incarceration of in ates in extreme heat conditions violates its duties to
inmates, and constitutes inhumane treatment of such prisoners in violation of inte ational
human rights standards.

The Human Rights Clinic concludes that current extreme heat conditions in TDCJ
facilities also violate inmates’ constitutional right to be free from cruel and unusual punish ent.

4

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The United Soles f Appeals for the Fifth Circuit has recognized time and again that
extreme heal A p U an - nstitute a violation of inmates Eighth Amendment rights. In a
2012 case, a 63 ear '-j Tex_-_s prisoner presented with a preexisting blood pressure condition,

and was taki g medicancn mar would affect his body s ability to regulate temperature. The court
decided that a ;ar- could conclude that a failure to provide air conditioning, among
other thins, eo a aKsvxaial with these conditions was a violation of the prisoner’s

constitutional ngfe. \fosr recently, the Middle District of Louisiana issued a decision in 2013
condemning me extreme seat conditions in a Louisiana prison facility similar to those conditions

present in TDCJ tkilkies as a violation of the Constitution. There is therefore clear and recent
precedent for ae ou g the hot conditions in TDCJ facilities as violating the guarantees and
rights of iiHBSes un er ihe Eighth A endment.
Given mat foe T CTs current treatment of its prisoners is a violation of the Constitution
and intemaskw i rsmst law, the Human Rights Clinic recommends the following actions
to immediate1} eifoima e foe TDCJ’s current practice of inhumane treatment of its prisoners in
extreme heal cacieeam

1. The Tesas Iteiartment of Criminal Justice should immediately codify and implement
preveniaim s measures for the coming summer months to prevent exposing inmates
to extre e neat conditions and, particularly, to avoid additional heat-related injuries and

deaths. Permanent and adequate measures should, at the least, include installation of air
conditioning units to keep temperatures in inmate housing areas below 85 °F. Until this is
completed, TDCJ should take additional precautions to reduce the risk of injury and
death, including:
a. fasre for screening of all new in ates for health conditions or medications that
coofo masezr them more susceptible to heat-related illness;
b. fsErrafise movement of more susceptible new inmates to housing areas that do
sex ha e remperatures exceeding 85 °F;
c. If areas s

safe temperature are not yet available, continuous monitoring of

sascepifofc: ew inmates which starts immediately after screening;
d. rre srx monitoring of any inmates housed in non-air-conditioned units when
Er-~er_.mrss in in ate housing areas exceed 85 °F;
e. P-o ' 'o of constant in ate access to c ol liquids and ice; and
f

- c~-- nentation of these practices, including number of inmates classified

a xacsmEik to heat-related illness and quantit of cool liquids provided per
assEL

2. In fo

---s. iher by promulgation of new TDCJ policy or by amendment of the

Texas Jn.,r .-rc-Tve Code, a maximum temperature standard should be set for all TDCJ

faeffioes- st ndard should mirror the standards promulgated by the Texas

5

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 7 of 37 PageID #: 194

Commission or. St

ards and the standards TDCJ currently has in place for the

prison wericpkics recr-' ally, the standard should follow widespread precedent and
adopt a max.ur.js uz-pj ature standard of 85 °F throughout its facilities, including in
prison celts an inrr.jie housing areas.

3. The TDCJ cC'c - exas Legislature should approve funding as necessary for
installatioe cf e rjj-ec: air-conditioning at TDCJ prison facilities, as needed, to ensure
temperaniies c rr: e.oeeed 85 °F.

By co tm Kig ic -jasresard the plight of TDCJ inmates subject to extreme heat, Te as and
the Texas epsr sen; ¦ '<' Hm'-nal Justice are in violation of both international human rights

standards as weS as the Cocs rcdon. The TDCJ therefore must take immediate action to protect
the human rights of its scrers.

6

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 8 of 37 PageID #: 195

Introduction
Since 2007, at least fourteen inmates have died from extreme heat e posure while
detained in correctional facilities run by the TDCJ.1 These deaths have taken place in various
prisons and transfer facilities throughout Texas, i cluding the Gurney, Michael, Hutchins,
Huntsville, Hodges, and Garza West Units. Aside from the Huntsville Unit,2 3 these facilities were
opened in the past thirty years, but still lack safe climatic and temperature conditions for inmates
detained within them. The families of some of the inmates who have died have brought
complaints in federal district court, seeking justice for the inhumane treatment and overheated
prison conditions that contributed to the death of their loved ones
Exposure to extreme heat in detention conditions such as those present in Texas prisons
violates several human rights of those incarcerated and constitutes cruel and unusual punishment
under the Eighth Amendment. This Report discusses how Texas ignores current scientific
findings regarding the dangers of extreme heat and how extreme temperatures are an ongoing
threat to the lives of many inmates in Texas prisons. The findings of the Report demonstrate how
the current situation is contrary to Texas s constitutional obligations to protect inmates from
cruel and unusual punishment are discussed. The Report also demonstrates that Texas has not
met the obligations arising from international human rights standards relating to the treatment of
prisoners under extreme heat conditions. Te as also falls short in comparison with the standards
developed by other states. Finally, the Report proposes heat-mitigating standards and procedures
for Te as prisons, and urges the TDCJ to implement such standards in order to prevent future
human rights violations in its facilities.
Current standards for mitigating extreme heat in TDCJ facilities (or lack thereof) are
woefully inadequate by any comparative measure. Not only do the conditions in TDCJ facilities
violate international standards for detention conditions, but these conditions also constitute
violations of the Constitution. Texas lags behind many other southern states with regard to
enacting and enforcing adequate standards to deal with extreme heat in its prisons. Even Texas

county jails have standards for maximum allowable heat.
This Report from the Human Rights Clinic of the University of Texas School of Law was
co-written by Albert Suarez IV, Kyle Shen, Samantha Chen, and Alex Goe an under the
supervision and guidance of the Clinic s Director Ariel Dulitzky.

1 For purposes of this report, reference to Texas prison(s), correctional facilities run by the TDCJ, TDCJ-run
correctional facilities, TDCJ facilities shall mean state prisons, state jailsf,] and private correctional facilities
that contract with the TDCJ. Abo t the Texas Department of Criminal Justice Tex. Dep T. OF CRIMINAL. JUSTICE,
https://www.tdcj.state.tx.us/about_tdcj.html (last visited March 29, 2014).
2 The Huntsville Unit was established in 1849. Unit Directory: Huntsville Unit, Tex. Dep T OF CRIMINAL JUSTICE,
http://w w.tdcj.state.tx.us/unit_directory/index.html (last visited Feb. 27, 2014).
3 These cases are: Adams v. Livingston, Marone v. Livingston, McCollum v. Livingston, Togonidze v. Livingston,
Webb v. Living ton, and Hinojosa v. Livi gston. Each case is brought on behalf of the family of a person whose
family member has died in a prison in Texas, and seeks compensatory, punitive, presumed, and nominal damages to
which the family member is entitled for the rongful death of their kin.

7

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I.

Texas Prison Inmates and Staff Are Exposed to Dangerous Heat Conditions
In Texas, average summer temperatures frequently reach over 90 °F, 4 and are often

combined with humidity levels that can approach 100%.5 These temperatures produce concerns
for health among the general population.6 Air conditioning in these conditions becomes very
im ortant, particularly for children, the elderly, and people with disabilities or medical
conditions that make them vulnerable to the heat.7 8 It is estimated that by the year 2011, 88% of
ne ly built single family homes in the United States were equipped with air conditioning.
Prisoners with certain physical or medical conditions are at an even higher risk for heat-related
illnesses, as they are encarcerated in enclosed environments with limited freedom of movement.
Nevertheless none of the TDCJ facilities in which inmates died of heat illnesses were equipped
with air conditioning for the general inmate population.9 10
The National Weather Service (NWS) recognizes the danger of heat-related injury,
calling excessive heat one of the leading weather-related killer[s] in the United States, resulting
in hundreds of fatalities each year. 50 As humidity increases, the chances of heat-related injury
rise to dangerous levels, even at relatively low summer temperatures.11 The NWS offers a chart12 *

to identify the risks of heat-related injury in different climates, which shows a sharp increase in
the likelihood of heat-related injury hen high humidity coincides with high temperatures.

13

Despite these risks, Texas prison staff has recorded prison internal heat indices that fall squarely
in the extreme danger category identified by the NWS, illustrating the TDCJ s continued
indifference to endangering the health or lives of heat-vulnerable inmates.14

4 Climatology Comparison, THE WEATHER CHANNEL.
http://www.weather.com/weather/wxclimatology/compare/77002?sfldl=Palestine,%20TX&sfld2=Rusk,%20TX&cl
ocidl=&clocid2= (last visited Feb. 27, 2014).
5 See inf a Figure 2.
6 Hot Weather Exercise Tips, TEXAS HEART INSTITUTE (December 2013),
http://wvw.texasheart.org/hic/topics/hsmart/hydrate.cfrn (last visited Feb. 27, 2014).
7 Heat: A Major Killer, Nat L WEATHER SERV. OFFICE OF CLIMATE, ATER, AND WEATHER SERV.S (Jan. 14, 2014),
htt ://www.mvs.noaa.gov/os/heat/index.shtrnl (last visited Feb. 27, 2014) [hereinafter NWS],
8 U.S. Dep t of Com erce, Heating and Cooling the Home, U.S. CENSUS Bureau NEWS: FACTS FOR FEATURES,
April 22, 2013, available a? https://www.census.gov/newsroom/releases/pdf/cbl3fF-08_earthday.pdf.
9 Frequently Asked Que tion , Tex. Dep t of Criminal JUSTICE, https://ww .tdcj .state.tx.us/faq/faq_cid.html#air

(last visited Feb. 27, 2014).
10 WS, supra note 7.
n Id.

12 See Fi ure 1.
n Id.

14 See infra Figure 2.

8

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NCAA's

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it er Service

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Figure 1: NWS

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  Extres ?e Danger

15

ksrt

Texas has one of ok oiorssc mprisonment rates and one of the largest inmate

populations in the cou tr T e DCJ s latest published statistics show that there were 152,303
incarcerated individuals in TDCJ facilities as of August 31, 2012,15 16 17 located in 109 TDCJ units
throughout the state.18 Most of these inmates are exposed to extreme heat. Recent TDCJ

temperature logs have recorded heat indices surpassing 100 °F by 8:30 in the morning.19 Even if
the climate remained in this state for the entire day, inmates already would be facing heat indices
that the NWS has identified as son- aching with extreme caution due to an increased likelihood
of heat-related injury.20 in some -nsss2ces> records also show that air temperatures outside some

TDCJ facilities have spi

abc e ! "F by 10:30AM, resulting in a heat index exceeeding 149

°F.21 These temperatures can reoam at that level for several hours;22 indeed, investigations into
heat-related deaths at T CJ Ac'- o Ar-e found temperatures above 90 °F even past midnight.23

This heat far exceeds any of extre e danger identified by the NWS.24

15 NWS, supra note 7.
16 E. Ann Carson &DANiB-i C-v i:'~ . t T .-o.vd of Justice Statistics, Prisoners in 2012-Adva ce Counts

1 (July 2013), available at her. oement/pub/pdf/p 12ac.pdf
17 Tex. Dep t of Criminal Joe. a- "2012 Statistic l Report E w/aWe a/
http://wmv.tdcj.state.tx.us/<k4&j~ -r.r„.Report_FY2012.pdf.

18 Unit Directory TEX. Dep' . httpJ/w\w.td<g.state.t .us/uiut_directory/index.html (last

visited Feb. 27, 2014).
19 See infra Figure 2.
20 NWS, supra note 7.
21 See infra Figure 2.
22 Id.

23 Complaint at 130-31, HEwsa L -eaessoa, No.2:13-cv-00319 (S.D. Tex. Dec. 15, 2013); UNIVERSITY OF
Texas Medical Branch, Fttit, viTc s-* eport: Hinojosa, albert 2 (2012).
24 See supra Figure 1.

9

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 11 of 37 PageID #: 198

TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Tem erature Lo

WHl
r)., , OutsideAjr
'3

Temperature

HtimldHy of
Wind Spee

Heat In ex or  . Perso
Win Chili
Recording

9:30 &m.
,

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Figure 2: Temperature Log, Hutchins Unit, Te as Department of Criminal Justice

25

Additionally, almost half of TDCJ facilities are built with outer walls that are either
partially or fully constructed from metal.25 26 Temperatures in these metal-constructed facilities are
consistently higher than ambient temperatures or tem eratures in concrete facilities.27 Inmates

housed in these facilities have no way of escaping the heat, and are placed at risk of suffering
heatstroke as a result.

Despite extreme temperatures, TDCJ-run correctional facilities (with the exception of
hospitals and psychiatric facilities) generally do not provide air conditioning to prison inmates,
as would be the proper and adequate measure to take.28 While the commissaries in TDCJ

25 Te . dep t of Criminal Justice, Temperatu e Log Hutchins Unit (July 19,2011).
26 Joseph Tore Nalbone, Evaluation of Building and Occupant Response to Temperature and Humidity: NonTraditional Heat Stress Considerations: A Comparison of Different Construction Types Used b the Texas
Department of Criminal Justice 7 (Dec. 2004) (unpublished Ph.D. dissertation, Texas A&M University), available at
httpu /repository.tamu.edu/bitstream/handle/1969.1/1504/etd-tamu-2004C-lTDE-Nalbone.pdf?sequence=l.
27 Id at 29.
28 Freq ently Asked Questions, supra note 9.

10

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 12 of 37 PageID #: 199

facilities sell fans to inmates for $22.50,29 those fans are the fifth most expensive item on a list
that is largely populated with items costing less than a dollar each.30 31 Not only is this price
prohibitively expensive to many suffering inmates, the use of fans in extremely hot and humid
conditions may not even mitigate the situation for these prisoners. Studies conducted by the C C
have reported that fans will not protect a person from heatstroke and heat-related illnesses when
temperatures are above 90 °F and humidity is above 35%.J1 In fact, using fans in extremely hot
and humid conditions may actually increase heat stress on the body.32 As already stated, TDCJ
records33 show that temperatures and humidity in its prison units many times exceed these levels
in the summer months, causing danger to inmates that can quickly progress to death.34

29 Tex. Dep t of Criminal Justice, Commissary nd Trust Fu d Price list (Nov. 22,2013), available at
http://w w.tdcj .state.tx.us/documents/finance/Commissary_Price_List_l 1-22-2013 .pdf.

30 Id Texas Citizens United for Rehabilitation of Errants (TX-CURE) runs a fan program through which indigent
prisoners are provided fans at no cost to them. Texas CURE Fan Program, TE AS CURE,
bttp://ww .texascure.org/fanprogram.html (last visited Apr. 3, 2014). Ho ever, the availability of the fans is
dependent on donations received by TX-CURE, and the group never has enough funding to help everyone ho
requests [a fan]. Bob Ra Sanders, WHie Summer arrives, Texas inmates suffer more, FORT WORTH STA Telegram, (Jun. 1, 2013), http://w w.star-telegram.com/2013/06/01/4899449/sanders-when-summer-arrivestexas.html.

31 Ctr.s for Disease Control and Prevention, Heat Related Illnesses, Deaths, and Risk Factors Cincinnati and
Dayton, Ohio, 1999, and United States, 7979-/997, MO BIDITY AND MORTALITY WEEKLY REPORT (June 2, 2000),
http://www.cdc.gov/mmw/previe /mm rhtml/mm4921a3.htm (last visited Feb. 27, 2014) [hereinafter MORBIDITY

and Mortality Weekly Report],
32 See, e.g.. Precautions Ca Prevent Heat-Related Illne ses, CITY OF HOUSTON,
http://wmv.houstontx.gov/bealth/heatill ess.html (last visited Apr. 2, 2014); Fans, NATIONAL COLLABORATING
Centre FOR Environmental Health (March 2011), http://www.ncceh.ca/en/rnajor_projects/heat_advice/fans (last

visited Apr. 2, 2014).
33 See supra Figure 2.
34 See R. Sari Kovats & Shakoor Hajat, Heat Stress and Public Health: A Critical Review, 29 ANNUAL REV. OF PUB.
Health 9.1, 9.2 (2008), cn>ailable at

http://cgch.lshtm.ac.uk/Heat%20Stress%20and%20Public%20Health%20A%20critical%20review.pdf.

11

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 13 of 37 PageID #: 200

Deadly Texas prison temperatures have been a long-standing, ongoing issue in TDCJ-run
facilities, and the TDCJ is well aware of this issue. For example, at least sixteen Texas prison
inmates experienced symptoms related to hyperthermia in the summer of 1998, three of hom
died fro their symptoms.35 36 Many of those inmates had preexisting health conditions and were
receiving psychotropic medications, yet were housed in units that were not cooled so iheir
medical needs.37 Over the years, TDCJ facilities seem to have seen little impro%enrerc_

completely disregarding the rights and dignity of its inmates. Since 2007, at least fo:r-££inmates have died from extreme heat38 in nine different TDCJ prisons.39 40 * * * A fourteen
had preexisting health circumstances that rendered them more vulnerable to heat-reia d
illnesses, such as obesity, di betes, and history of hypertension.40 41 Thirteen of the fragfegs

35 Photograph, Tex. Dep t of Criminal Justice. Polunsky Unit Fan, Livingston, TX (Jan. 1,2006) (on file whi
author).
36 Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness 125 (2005.1
available at http://www.hrw.org/reports/2003/usal003/13.htm; Letter from Dr. Jeffrey L Metzner to attorney DwisasL
Brorby (December 31,1998) 17, i ailable ar http://www.clearinghouse.net/chDocs/public/PC-T -0003-00
37 Human Rights atch, s pra note 36.
38Amended Co plaint at 14-15, Adams v. Livingston, No.3:13-cv-00217 (S.D. Tex. July 24, 2013). There s set
be more heat-related deaths that have not been reported as such. See Abderrezak Bouchama & James P. RnncscHeat Sfroke, 346 New Eng. J. Med. 1978,1978 (2002) (stating that heat stroke is an underdiagnosed illness
39 Id. at 14 15. These units are Byrd Unit, Gurney Unit, Hutchins Unit, Coffreld Unit, Hodge Unit, Michael t
Huntsville Unit, Connally Unit, and Garza West Unit,
40 Richard Beebe & Jeffrey Myers, Professional Pa amedic, Volume III: Trauma Ca e & EMS
OPERATIONS 271 (2011); Extreme Heat: A Prevention Guide to Promote Your Personal Health and Safety-

Continued Ctr.s for Disease Control and Prevention (July 31,2009),
http://ww .bt.cdc.gov/disasters/extremeheat/heat_guide-page-2. sp (last visited Feb. 27, 2014); Frequen.p d

12

 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 14 of 37 PageID #: 201

inmates were a g

pre cribed medication at the time of their deaths.42 These medications

included dsB scs, s»c »opics, and beta-blockers,43 all of which can further inhibit the body s
ability to s ea. or oefaer ise cool down, and should have alerted medical staff of inmates
susceptihtiiiy kj besesrokc. Five of the inmates spent less than a week in TDCJ custody before
the d2ng£rc':asK r - • i dons in the prison facilities, and the lack of proper TDCJ preventative
measures. '~o .

All inmates whose body temperatures were measured had body

tempei mres o* Of *F at the time of their deaths * 45

High have not only exposed inmates to dangerous situations and caused
multiple - .v el so consistently and systematically harmed prison personnel. In 2012,
92 TDCJ . .--t?-.- Cheers su fered heat-related injuries or illnesses, and 55 additional

injuries cr. orreesei sre recorded by the 1DCJ by Septe ber of 2013.46 * Many of these sa e
officers sis - tO J ~csAers' compensation clai s with the Texas Department of Insurance. In
2011. cc H -- rrkers’ compen ation claims were filed by TDCJ correctional officers, 66
were nVd ¦t • 1 j -ro in 2013.48 49 50 The situation has beco e so egregious that in October of
2013. upon .- presenting corrections officers in Texas prisons publicly sup orted

lawsui fi¦ J Ir- of prisoners who had died, citing the stifling heat and heat-related
injuries a.~cr_c c~srr. cuards.4y The union reported that corrections officers complained of

temperarures as FtgF as 130 °F, and were especially incensed that Texas had spent $750,000 on
exhaust fans and misters for pig farms to keep swine cool, while neglecting extre e heat
conditions for inmates and guards inside the prisons,Not only does this heat cause significant
injury to guards, but it also precludes them from properly managing inmates by discouraging
prolonge e posure to the extremely hot inmate housing areas of the prisons.

The dangero s heat situation in Texas prisons is well documented. Almost every audit
report of tise Correctional Association (ACA)51 performed on TDCJ facilities during

http://ww'» rt.

ffes, Ctr.s for Disease Control and Prevention (Aug. 15.2006),
.Ssasiers/extremeheat/faq.asp (last visited Feb. 27, 2014).

41 Amen ed C

. smxn note 38, at 15.

Questions ifwme •

42
nld.

44 Id. at 2?
45 Id at 21.
46 Brittne'

s 'lav Join Inmates i Complaints Over Heat i Texas Prisons, DALLAS News (Sept. 17,

2013), h=r ---- a Ls avvs-Com/news/state/headlinesCO 130917-guards-may-join-inmates-in-complaints-over-

heat-ir

=st \isited Feb. 27,2014).

Id
48 r- t-mai.

Crimina

•- < Progr m Supervisor I, Risk Management, ARRM Division, Texas Department of
- - March 27, 2014,4:00 CST) (on file with author). These numbers may be higher. See
that 72 heat prostration claims ere filed by corrections employees in 2012).

Marti . 49 Ann . - - - - - eat Tests Prisons, WALL ST. J., Oct. 17, 2013, available at

http://cr i- -. . -4 rrDc]es/SBl000142405270230444140457912338120202683 .
50 !d
51 The C A national standards applicable to domestic correctional facilities. Standard &
4rrrpHrt.

a,' TSaC« CO ECTIONAL Association, https://www.aca.org/standards/faq.asp#overview_whatis

(last I . 2 4 ). For a facility to become ACA accredited, it must co ply with a certain percentage of
ACA ' oiiance is based largely on the results of an ACA audit. Id. If a facility is found to be in

13

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me summer months mention the hot conditions inside TDCJ prisons.52 The audit for the ColeMoore unit, i particular, mentions that the inmate living areas were unco fortably warm in

spite of the use of large fans. 53 In addition, the ACA s audit of the Gurney Unit noted the deaths
of five inmates in the very hot summer of 2011, stating that [e]ach of these persons had
medical and/or mental health conditions that placed him at risk, and excessive heat was judged to
save been a significant contributing factor in the deaths.”54 While the ACA accredited these
u its, the subject of heat was brought up time and again, showing that extreme heat is a tangible
aid noticeable issue in TDCJ facilities.55 Despite these findings, the TDCJ has failed to take any
proper action.

II. Extreme Heat in TDCJ Facilities is Unhealthy
Extreme heat injuries are widely studied in medical and scientific literature, as well as by
govern ent and regulatory bodies. The effect of excessive heat on the human body is called
hyperthermia.56 One result of hyperthermia is heat stroke,57 the most extreme type of heat-related
injury and the sort suffered by those who died in TDCJ prisons. Heat stroke occurs once the body
rs no longer able to reduce its internal temperature.38 59 60 When this occurs, the body s internal

temperature rises to 106 0F within ten to fifteen minutes; two inmates who died from heat stroke
in TDCJ facilities had body temperatures above 109 °F at ti e of death.59 60 The pulse becomes
strong and rapid,61 and his or her skin will feel very hot.62 Eventually, the person may become

compliance and is subsequently accredited, the accreditation award will last up to three years, at which point the
facility must become re-accredited. Id.
52 See, e.g., American Correctional Associatio Commission on accreditation for Corrections,

ACCREDITATION REPORT: BRISCOE/COTULLA UNIT 7 (2012); AMERICAN CORRECTIONAL ASSOCIATION COMMISSION
ON ACC EDITATION FOR CORRECTIONS, ACCREDITATION REPO T: COLE/MOO E UNIT 7 (2012) [hereinafter
COLE/MOORE UNIT]; MERICAN CORRECTIONAL ASSOCIATION COMMISSION O ACCREDITATION FO COR ECTIONS,
ACCREDITATION Report: EASTHAM Unit 6 (2011). Despite these issues, every TDCJ-run facility subject to ACA
audits in the last three years has been accredited by the ACA.
53 Cole/Moore Unit, supra note 52, at 7.
54 AMERICAN CORRECTIO AL SSOCIATION COMMISSION ON ACCREDITATION FOR CO ECTIONS, ACCREDITATION

Report: Gurney Unit 9 (2012).
There has been some criticism among significant organizations such as the ABA about the accreditation process
of prison accreditation bo ies. See American Bar Association Criminal Justice Section, Key Requirements for the
Certification of Correctional Accrediting Age cies (2011), available at
hrttpi//wivw.a ericanbar.or /content/dam/aba/ad inistrative/cri inal_justice/2011 a_resolution 1 OSb.authcheckdam
-pdf (critiquing currend available accredit tion processes and calling for more transparency and accountability of
accre itation bodies).
36 NWS, supra note 7.

57 Ctr.s for Disease Control and Prevention, Heat Stress, THE Nat. INST. FOR OCCUPATIONAL SAFETY AND HEALTH
( ov. 7,2013), hiip://ww\y.cdc.gov/niosh/topics/heatstress/ (last visited Feb. 27, 2014) [hereinafter NIOSH],

Id
59 Id
60 Amended Complaint, upra note 38, at 15.
61 Heat Illness, U.S.NAT L LIBRARY OF MEDICINE Nat L INST.S OF HEALTH (Feb. 25, 2014),
http://vAvw.nlmmih.gov/rnedlineplus/heatillness.html (last visited Feb. 27, 2014).
62 Heatstroke: Symptoms, Mayo CLINIC (Sept. 2, 2011), http://www.mayoclinic.org/diseases-conditions/heatstroke/basics/svmptoms/con-20032814 (last visited Feb. 27, 2014).

14

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unconscious.63 At a certain point, the organs, including the brain, ill stop functioning.64 Given
prompt and proper treatmen a person may recover from this condition, but if left untreated, the

person risks permanent disability or death, sometimes within ten to fifteen minutes.65
Several other types of injuries can result from exposure to excessive heat. At any stage of
heat-related illness, prompt treatment is important to stave off more dangerous symptoms.66

He t-related illness can manifest in relatively mild conditions, like heat rash, where a person s
skin breaks out in rough, itchy patches of red blemishes.67 More than just an uncomfortable
inconvenience, these red splotches impede the skin s ability to sweat, which farther exacerbates
the body s overheating problem.68 If the person has been involved in strenuous physical activity,
heat cramps may also occur.69 These are painful and uncontrollable muscle spasms in the legs or
the abdomen.70 More serious conditions include heat exhaustion, where a person becomes

sluggish and very weak as their body pushes to cool itself.71 72 73 The person develops cold and

"

¦-

-

-

¦

¦¦

»

¦¦¦¦¦¦

MW

¦

clammy skin, a weak and rapid pulse, and may even faint. Because the body’s primary coping
mechanism for heat is sweating, dehydration often accompanies heat-related illnesses."

Dehydration is dangerous not only because it means the body can no longer sweat properly, bi
also because it can independently lead to organ failure through the loss of important electrolytes
and nutrients on which the body relies to function properly.74
The effect of heat on an individual’s physiology will vary from person to person.
However, organizations such as the De art ent of Labor’s Occupational Safety and Health

Administration (OSHA) and the CDC have outlined conditions where the likelihood of heatrelated illness increases across the broader population.
The OSHA recommends that even workers involved in light, sedentary work like writing
or knitting should avoid continuous work in temperatures higher than 87 °F.75 The OSHA states
that ample supplies of liquids should be made available to these workers, and that workers
should drink small amounts frequently (such as one cup every t enty minutes) to re lace lost
fluids.76 Furthermore, efforts at climate control like proper ventilation, air conditioning and fans

63

Id.

64

Id.
Id.
66
NWS, supra note 7.
67
NIOSH, supra note 57.
68
Id.
69
NWS, supra note 7.
70
Id.
71 NIOSH, supra note 57.

65

72 Id.

73 NWS, s pra note 7.
74 Dehydration, Mayo Clinic (Feb. 12, 2014),

http://wvi'w.mayoclinic.com/health/dehydration/DS00561/DSECTION=complications (last visited Feb. 27,2014).
75 OSHA Tech ical Manual (OTM) Sectio lit Chapter 4, UNITED STATES DEPARTMENT OF LABOR OCCUPATIONAL
Safety & Health Administration, available at
https://www.osha.gOv/dts/osta/otm/otm_iii/otm iity4.html#iii:4_3.
76 Id.

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should be used to avoid heat-related injury.77 The CDC has adopted simil r
Any time heat-related injury may become an issue, the CDC recor me .'! ir- iuent
replacement of fluids and taking breaks from prolonged exposure to extrcrre * =1 and

humidity.77 78 79 The CDC has also found that while fans may be helpful and max iacrease omfort
when temperatures are below 90 °F, they will not protect a ainst heatstroke sad ~aea: at&L
illnesses when temperatures are above 90 °F and humidity is above 35?%.
For instance, in 2006, the CDC investigated climatic conditions si m T s elter
in Texas during late July.80 The CDC investigation discovered that workers in m. s-r.-Car plant
were exposed to indoor temperatures ranging from 83 °F to 120 °F. acco misg f r h~idity,
radiant heat, and wind.81 These temperatures are similar to those presen: :r. TDC fncT. ies.82 *

Many participants in the investigation reported symptoms of heat-neiarec -Tie r pid
heartbeat, headache, muscle cramps, and lightheadedness, and showee s r.:- r* ae quate

hydration and acute kidney injury from fluid depletion.84 Given these fbe ngs. rre C report
recommended the installation of a cooling area and the elimination of lo g uverrs--- shins that
exposed workers to overheated conditions for prolonged periods.8" By subject
TDCJ inmates to e treme heat for hours at a time, the TDCJ has. CmT; C.j-ed the

recommendations of this CDC report. Additionally, the CDC found drs: rmective
equipment86 was considered the least effective means for controllin cnr.Cv s exposures,

“should not be relied upon as the sole method for limiting employee e posures,” but rather was
to be used until engineering and administrative controls can be demonstrated to be effective in
limiting exposures to acceptable levels.”87 Therefore, while provision of lightweight or
appropriate 88 clothing may be helpful in mitigating heat-related injury, it is, on its own, not
enough to adequately limit in ate heat exposure.
The TDCJ Risk Management Department is well aware of the Ask it he -related
illnesses when temperatures and humidity rise. In its May 2013 Trainin Cscssu » eblication
77

Id.

78 NIOSH, supra note 57.
79 Morbidity and Mortality Weekly Report, supra note 31.
80 BlCH D NG ET AL., NAT L INST. FOR OCCUPATIONAL SAFETY AND HEALTH, HEAT STRE S AJ J S L- Evaluation Among Aluminum Potroom Employees - Texas i v (2011), available cb
http:/Avww.cdc.gov/niosb/hhe/reports/pdfs/2006-0307-3139.pdf.
81 Id. at 5.
82
83
84
85

See supra Figure 1.
Id. at 6.
Id. at 7.
Id. at 10-11.

86 Personal protective equipment is defined as equipment wo to minimize exposure to - - injuries
and illnesses. Personal Protective Equipment, OCCUPATIONAL SAFETY & HEALTH Advt .
https://www.osha.gov/SLTC/personalprotectiveequip ent/ (last visited March 29, 20H 0~ - *ggests
the use of light eight, reflective aprons as personal protective equip ent for aluminuir •--rssrs ~~ w ET AL.,
supra note 80, at 11. Personal protective equi ment protecting against heat stress can - ~ r ~k cr things,
reflective clothing or etted clothing. Heat Stress Guide, OCCUPATIONAL SAFETY & Ke.* A
https://www.osha.gov/SLTC/emergenoypreparedness/guides/heat.html (last visited M*m 9. 20 ¦_
87 Dang ET al., supra note 80, at 11.

88 Admin. Directive AD-10.64 (rev. 6) 5 (2008).

16

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among TDCJ employees to manage risk and to raise awareness in TDCJ prisons, the
Ti 7 d ills that risks for heatstroke can be in at. temperatures as low as 91 °F, and that
" 1 r 11 UM -- r

~

ssessrcres of 95 °F can create an i minent danger of developing heatstroke. Despite this
tramkig. the TDCJ has failed to adopt comprehensive measures to prevent or minimize risk of

SKS- e si injury. The Risk Management Department h s even trained its employees in heat
spr revention for their pets, asking employees if their homes were air conditioned and if
fresh, coot ater was available to their pets at all times.90 Unfortunately for TDCJ inmates, these
iraeasssrs sre not made available to them in their cells, and temperatures in TDCJ-run

sotrectsoBsi facilities continue to pose a threat to the lives of TDCJ inmates.
FoSow these common sense lips to prevent a heat-related
pel emergency
* Besides the obvious,,, provide ebalier and shade,
fresh water. and good grooming, hare ar« some tips to

help keep your pal cool in the summer heat
* Bo aaare of ways that your pet couSd accldentaSy bo
wfthoui shade • is ywr

pot on s tsther and coul
potertteSy getcsugWoutin the
fuB ®m? Wffl tha shade be
avatebf® all day? White Ihe
sheSw rovides shade, is

ho or ins is the eheter? if
pos la, uttSiB sha e from trees
In addition to tho og house;
assuring that these is sufficient
Shade jail day king,

* If your pet is left Indoors, is air contfitowg aypiiahta?
WiB t e bouse stay oooi through the teal of lha day

Figure 4: TDCJ Risk Management Department: Injury Prevention Heat A areness
91

t Texas Prisons Lack Adequate and Effective Policies to Protect Inmates fro
E posure to E treme Heat and Heat-Related Injuries
Despite the obvious need for procedures to mitigate heat-related situations in Texas
rr2K3&. 3k TDCJ does not have standards in place to protect inmates from life-thre tening
in their cells, and has failed to adopt effective measures to do so.
hile the Executive Director of TDCJ has a statutory responsibility to establish or to
-Soesec die establishment of guidelines for the treatment of prisoners under TDC care,92
-. -r y

mulgated procedures controlling inmate exposure to extreme temperatures apply * •

• of Criminal Jusiice, zy Hot Weather, TDCJ RiskMgmt. S Training ClRCUl R, May 2013, at 4,
• ; at https://www.tdcj.stale.tx.us/documents/training_circular/Training__Circular_2013-05.pdf.
_y\- Epperson, Tex. Dep t of Criminal Justice, Injury Prevention Heat Awareness Training 9,
- -)).
-- <3.

¦ - • jOVt Code § 493.006 (2011).

17

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only to the working conditio s of inmates, not to their living areas.93 Acccording to those
procedures, when inmates are placed in work environments where temperatures cannot be

controlled by the TDCJ (such as outdoor work), the Warden and the Department Supervisors
must ensure that appropriate measures are taken to prevent temperature-related injury.94 When

there exists a possibility of heat exhaustion or heatstroke, the Warden must instruct staff to
initiate precautionary measures.95 At heat indices as low as 90 °F, staff is required to implement
five minute rest breaks per hour for inmates on work assignment.96 When the heat index reaches
110 °F, staff must promote high water intake, implement five minute rest bre ks every half hour
during which inmates must lie down with their feet raised, and work is to be reduced by one
third.97 When the heat index reaches 130 °F, work pace should be reduced by one half to two
thirds, excessive water intake is required, and ten inute rest breaks are implemented every half
hour, during which inmates must lie down with their feet raised.98 Staff is also is instructed to
conduct a special medical evalu tion on inmates taking diuretics or other sweat-inhibiting drugs
before assigning them to work assignments in extreme heat conditions.99 Although these detailed
stand rds are useful to both staff and inmates in prison work environments, no similar TDCJ
stand rd is available for inmate cells and living areas, where inmates spend a large part of their
time. Given that many of the most heat-vulnerable prisoners may not be allo ed to work due to
their health issues, heat-mitigating measures in work environments do not help the situation of
the most heat-sensitive inmates.100

This is not to say that all Texas government l agencies have failed to act with regard to
inmate housing conditions. While the TDCJ is responsible for operation of many state
correctional facilities, the Texas Commission on Jail Standards (TCJS) regulates and monitors
county jails and privately operated municipal jails in the state of Texas.101 102 The TCJS has
promulgated temperature standards in the Texas Administrative Code in order to protect county
and municipal jail inmates. These standards require that tempe ature levels shall be reasonably
maintained between 65 degrees Fahrenheit and 85 degrees Fahrenheit in all occupied areas.
In contrast, the TDCJ has failed to adopt any heat-related policies or procedures
applicable to inmate housing sp ces in its o n facilities, despite the Department s awareness of
the dangers of heat to inmates’ health and well-being.103 Air conditioning is available in TDCJ
warden offices104 and even in prison armories105 but not for the general inmate population.106

93
94
95
96
7

98

Admin. Directive AD-10.64 (rev. 6) (2008).
Id, at 1.
Id, at 5.

Id at 10.

Id
Id

99 Id at 5.
100 See id at 5 ( Of enders under treatment with diuretics or drugs inhibiting s eating require special medical
evaluation prior to assignment to work in extreme heat ).
101 Tex. Admin. Code § 251.1 (2011).

102 TEX. ADMIN. CODE §§ 259.160, 261.160, 261.255,261.350 (2011).
103 May Hot Weather, supra note 89.
104 Deposition ofRobert Eason at 111, McCollum et al. v. Livingston, No. 3:12-CV-02037 (N.D. Te . 2013).

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While air conditioning is also available in some TDCJ medical facilities,* 107 the major t> f
prisoners, such as those serving short-term sentences for nonviolent offenses, saffcr *
inadequately cooled environments.108 Although some ventilation is provided in inmates' crfis.

when the climate becomes too hot and humid, providing ventilation ithout adequate measures
for cooling does not provide relief. Ventilation and electric fans cannot guarantee that coBQj&oes
are maintained at safe temperatures, particularly once temperatures exceed 90 0F.109

Without a statute or administrative policy setting maximum allowable temperamres iar
TDCJ prison cells, TDCJ officials currently ignore the effects of extreme temperaforcs o
in ates without risking immediate consequences. This practice has fostered an enviromcs tss
subjects inmates to human rights violations and extremely dangerous and life-chrr£=±s
conditions.

IV. Texas Lags Behind Other States in Protecting Inmates from E treme Hep
Many state prison administrative bodies, in states with similar weather
Texas, have established heat-related standards for prisons that are compatifcV
requirements of inte ational law and the Eighth Amendment. The Arkansas De snr r r
Corrections mandates summerti e cell temperatures to be between 74 °F and 78 °F. so aE

prisons have been air-conditioned since the late 1970s.110 The Arizona Department of
Corrections requires indoor temperatures of its prison facilities to be maintained at a maximum
temperature of 78 °F through the use of mechanical cooling. This maximum temperature is
allowable only when it falls within the American Society of Heating, Refrigerating nd AirConditioning Engineers (ASHRAE) summer comfort zone standard; a lower air temper t re
may be required of the facility if exacerbating factors, such as high humidit krw s. see
present.111 ASHRAE, a leading and widely respected international building technolog sDcasy,
defines sum er comfort zones through the use of parameters such as air

humidity, and air speed.112 Similarly, both the New Mexico Department of Corrections am sr
Oklahoma Department of Corrections require prison inmate housing areas to be maimssec as.

5 Deposition of Richard Thaler at 180, McCollum et al. v. Livingston, No. 3:12-CV-02037 (N.D. Te ' •.
m Id.
107 Frequently Ashed Questions, supra note 9.
108 Elizabeth Koh, Climate-Co trolled Swine Buildings Dismay Inmate Advocates, The Texas Tribl
2013) , http://www.texastribune.org/2013/08/16/cooling-tdcj-swine-units-dismays-inmate-/ (last visited Pt=.

2014) .
NIOSH, supra note 57.
Mike Ward, Guards to join co vict litigation over hot state prisons, AUSTIN American-Statesmax Ajs.
2013), http://www.statesman.com/news/news/guards-to-join-convict-litigation-over-hot-state-p/nZgSD j r * 3-se
Feb. 27,2014).
111 Physical Plant Standards Technical Manual 1.5.1.3.2.1 (Ariz. Dep t of Corrections 2012).
112 See Hoyt Tyler et al., CBE Thermal Comfort Tool, Ctr. FOR the Built Environment at Univ. of Be self*
no

(2013), available at
htt ://cbe.berkeley.edu/comforttool/ (showing ASHRAE-compliant comfort zones ).

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 Case 6:17-cv-00166-RC-JDL Document 40-1 Filed 08/27/18 Page 21 of 37 PageID #: 208

temperatures appropriate to both summer and winter comfort zones-

this language is

open to interpretation, use of the ASHRAE definition of comfort zones* w.- m n produce specific
ma i um temperatures for straightfoward staff implementation

AS these states, like Texas,

experience extremely hot temperatures in the summer, but are still cofEH ise so setting humane
te peratures for inmates incarcerated in their state prisons.
While the above departments of corrections run facil ties t zie o-s to those run by

the TDCJ, multiple states have also established specific tempe-aare sctrrcsr s for county and
municipal jails. As previously discussed, the Texas Adminisrrairt e C e rs uires that county nd
municipal jails aintain temperature levels... between 55 Fa renheit and 85
degrees Fahrenheit. 113 114 115 The Tennessee Corrections Institute- u slsr the uthority of the
Tennessee Administrative Code, requires local jails, lock-ups. «•-and detention

facilities to maintain inmates sleeping nd activity areas at tenpersu es bet een 65 °F and 80
°F.116 North Carolina county jails and municipal lockups are .-o .---- . - ; entilation and air

conditioning systems capable of keeping confinement areas 85 'F or bek ."7 The Illinois
Administrative Code provides that municipal jails must routmei ¦y gjrO Ot: j3st«atures between

67 °F and 85 T.118
Even when correctional facilities are not bound by dreetr es or ssmtes specifically
delineating maxiumum allowable cell temperatures, departmen of cccrs tions in other states
have publicly recognized the dangers of extreme heat to their inmates. In the recent investigation
of the heat-related death of Jerome Murdough, a mentally-ill homeless m n who was put in a
Rikers Island jail for trespassing after trying to curl up and sleep in an enclosed stairwell on a
113 Physical plant Requirements CD-163000 FF (N.M. Dep t of Corrections 2011 k standards for

Inspections OP-130107.IV.B.16 (Okla. Dep t of Corrections 2012).
114 The Adult Correctional Facilities manual fro the A erican Correctiona - rrenil applies the same
language seen in the New Mexico and Oklahoma policies to all adult correctcra mErnu -ms- noting that
[tjemperatures in indoor living areas must be appropriate to the summer mi A-t* ones.” AMERICA
Cor ectional association, 2012 standards Supplement § 4-4153 (20 ; »=rs_- anda ds
SUPPLEMEN ]. However, the ACA has recently discussed potential improve- s - facility standards.
While suggested changes from the current standard have yet to be accepted by trseAeuA Committee,
suggestions over the past year have included requiring ASHRAE standards co-n Faaes amossuiring a maxi um
temperature of 78 °F in new construction living areas. AMERICAN CORRECno u STANDARDS

COMMITTEE MEETING MINUTES ACA File No. 2012-067 (July 2012) avaiicz '- _
http://wv,r .aca.org/standards/pdfs/Stahdards_Committee_Meeting_Augui i_ American
Correctional Association, Standards Committee Meeting Minutes r>- tandards

Subcommittee UPDATE-JANUARY 2013 2 (Jan. 2013), available at
http://www.aca.org/standards/pdfs/Standards_Committee_Meeting_Minut£>__s2-3ry _ A- c ACA AMERIC N
Co rectional association, Sta dards Committee Meeting Minutes. Standa ds

Subcommittee Update-August 2013 1-2 (Aug. 2013), available at
http://www.aca.org/standards/pdfs/Standards_Committee_Meeting_Augii f_A -r - saing discussion
shows concern for the lack of specificity in the current ACA standards and 3s __r - -- - ilrties, such as
TDCJ-run prisons, will not adequately adhere to the inmate living standares and the
international community.

115 TEX. Local Gov’t Code § 351.004 (2011).
116 Rules of the Tennessee Cor ections Institute Correctional F 1400-1.04(lXd)
(Tennessee Corrections Institute 2004).

117 N.C. Admin. Code§ 14J.1217(2013).
118 22 ILL. Reg. 19227 §720.40 (2013).

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chilly winter mss ~ e York City Department of Correction found that several cells in the
jail ere wrmes : ¦_ *P ! As a result of these findings, the department said that it had taken
steps to fix overiseaBag sssks, such as correcting any mechanical issues in the facility, despite
not being bou d by a specific maximum temperature standard.120 The lack of written maximum
temperatet sasdsd sar TDCJ facilities is therefore no excuse for the extreme heat conditions
in prisoners' uvins sres-

Tbe A T- 2T .Association (ABA) has also addressed the issue of extreme heat in the
Standards c of Prisoners. 121 While these standards have no binding authority on
the TDCJ or aro or&er jurisdiction, they were develo ed and approved as a set of workable
standards b% a di erser roup of legal and correctional practitioners with the intention of guiding
courts in their r- grre atoD of constitutional requirements that apply to prisoners. These
standards cas fcdir uide correctional departments towards safe, humane, and effective

facilities. ~ Tr-.e rovide that the physical plant of the correctional facility should have
appro riae sj*sEms. 23 In its commentary, the ABA adds that cooling should be
appropriate tc - z ne comfort and safety in all living and work areas (emphasis
added).1-4 li notes that prisoners who are particularly vulnerable to heat-related
illnesses

shoC-d be safe accommodated, and says that “a prison without air conditioning...

poses acme a ges ue iscmers who are taking certain psychoactive edications. Thirteen

of the TDCJ inmates who have died since 2007 were in fact on such medications. It is clear that
the TDCJ, by allowing these individuals to live in non-air conditioned facilities, has not
adequately provided for the safety and health of its heat-vulnerable inmates.
In fact, the TDCJ has itself set administrative guidelines for extreme heat conditions
when inmaies are on prison work assignment. As previously mentioned, the Warden and the
Departmer. S-psu-v-sc- i ve a duty to monitor temperatures when prisoners are working in
extreme heap, arc;medical staff immediately when temperature-related injury occurs.

TDCJ sta f require implementation of different heat- itigating measures for different

Matt Pearce, -Saaarr >»« Jarr man basically baked to de th' in Rikers Island Jail, LA, TIMES, March 19,
2014, availe ', r rr~- e-ari _ rmes-Com/nation/nationr>ow.Oa-n -nn-ne -yoik-jail-death-

-- • - iicwnllNWTk.
Id.
I2!
See Amecl
ABA Standards for Criminal Justice: Treatment of Prisoners 79-81
(3d. 2011), erir. • '¦;:iait/dam/aba/publicarions/criminal justice_standards/Treatment_ of Prisoners.authc
http://ww\* .
heckdam.pdf : -= =r5s of housing prisoners); MERIC N BAR ASSOCIATION, ABA STANDA DS FO
Crimi al Jr :
' _ : I F Priso ers 70-78 (3<L 2011), available at
-z. ucait/dam/aba/publicatioiK criimnalJustice_standards/Treatment_of_Prisoners.authc
http://www_
heckdam.fs±'
_=e Js of treatment of prisoners potentially vulnerable to heat-related illnesses).

20140319,0.1

122 Id. at 1.

123 Id. at 63
124 Id at 5
125 Id at 7&
126 Id at 7*.
127 ADMIN. ISKSTTVI A,> . 4 (REV. 6) 6-7, 9-12 (2008).

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temperatures,128 clearly demonstr ting the TDCJ s knowledge of how e treme heat can harm

individuals, as well as its ability to promulgate specific standards when it wants to do so.
The ACA has promulgated standards for inmate housing areas in ACA-accredited
facilities.129 Its overarching principle for these standards states, Inmate housing areas are the
foundation of institutional living and must promote the safety and well-being of both inmates and
staff. 130 The strong language of this statement suggests that the TDCJ s failure to promote the
safety of inmates and staff is itself a deviation from the ACA’s expectations for its accredited
facilities. The ACA has also specifically addressed heating and cooling in inmate housing areas,
stating that temperatures in housing areas must be appropriate to the summer and winter
comfort zones. 131 The ACA official comment to this nonmandatory standard notes that
"temperature and humidity should be capable of being echanically raised or lowered to an
acceptable comfort level. 132 As previously discussed, fans are largely useless in high
temperature and high humidity conditions, and are not capable of mechanically lowering extreme
temperatures to a level that will protect inmates from the risk of heat injury.133 The TDCJ’s
failure to protect its inmates from heat injury through adequate mechanical measures such as air
conditioning therefore does not meet ACA’s heating and cooling standards for inmate housing
areas, nor its expectations for how these standards should be reached.

Therefore, the TDCJ’s failure to promulgate cohesive policies and procedures to ensure
safe temperatures are maintained in inmate living quarters is a clear and inexcusable departure
from best practices and widely-adopted practices around the country and in Texas, as
evidenced by other states’ practices regarding climate control, the ACA’s critiques of TDCJ
facilities on this front, the ABA standards with regard to humane temperatures, and the
regulations ap licable to other types of correctional facilities in Texas.
V. Current Te as Prison Conditions are Unconstitutional
Texas’ failure to guarantee adequate treatment of prisoners and safe climatic conditions

during detention is both unconstitutional and an inte ational human rights violation. The Eighth
Amendment’s cruel and unusual punishment provision incorporates the requirement that

detention conditions respect human dignity.134 135 Indeed, the Supreme Court has said that, “The
basic concept underlying the Eighth Amendment is nothing less than the dignity of man. In
Farmer v. Brennan the Supreme Court held that deliberate indifference to conditions of
confinement constitutes a violation of the Eighth Amendment when a prison official
demonstrates a subjective deliberate indifference to conditions posing a substantial risk of

American Correctional Ass n, Standards for Adu t Cor ectional Institutions (4th ed. 2003).
xv> Id. at 36.

131 Standards Supplement, supra note 114, § 4-4153, at 58.
2Id. §4-4153 cmt at 58.
133 Morbidity and Mortality Weekly Report, supra note 31.
134 Furman v. Georgia., 408 U.S. 238,241 (1972).
135 Trop v. Dulles, 356 U.S. 86,100 (U.S. 1958).

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serious harm to the inmate.136 In defining the subjective element of deliberate indifference, the
Court held that the mental state of the prison official should be analyzed according to the
criminal law standard of reckless. 137 138 As such, if a prison official has actual kno ledge of a
potential danger” to a prisoner and fails to prevent this danger, then that official has acted with
deliberate indifference to the safety of the prisoner in violation of the Eighth Amendment. As
has already been stated, TDCJ officials have extensive knowledge of the extreme heat and the
danger that it poses to inmates. Specifically, TDCJ officials know that inmates with certain
health conditions are at a particularly high risk. TDCJ has been and continues to be acting with
deliberate indifference.
The Fifth Circuit has repeatedly held that high temperatures in a detention facility can
constitute a violation of the Eighth Amendment.139 In Smith v. Sullivan, the court held that relief
should be granted under the Eighth Amendment “if the proof shows the occurrence of extremes
of temperature that are likely to be injurious to inmates health.”140 Drawing on this principle, in
the 2004 case Gates v. Cook, the Fifth Circuit upheld a district court decision that granted an
injunction to Mississippi death row inmates requiring provisions to cool themselves from May
through September or, alternatively, whenever the heat index was above 90 °F. 41 Expert
testimony in that case showed that even though in that case no prisoner had ever died of heat
stroke, the extreme heat in detention combined with the prison’s deliberate indifference to such
a significant risk of harm constituted an Eighth Amendment “cruel and unusual punishment
violation.142

Following this holding, in Valigura v. Mendoza the Fifth Circuit stated that we have
held 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. 143 The most recent opinion of the Fifth Circuit applying Eighth
Amendment obligations to temperature extremes in TDCJ facilities found that the prisonerplaintiff in that case had alleged sufficient facts to justify' a finding that the state violated his
constitutional rights.144 Specifically, the prisoner was 63 years old, had a preexisting blood
pressure condition, and was taking medication that would affect his body’s ability to regulate
temperature.145 On 51 days during the prisoner’s confinement, the heat index reached levels
Farmer v. Brennan, 511 U.S. 825, 828 (1970).
137 Id. at 839.
138 Id. at 831.
139See, e.g., Smith v. Sullivan, 553 F.2d 373, 381 (5th Cir. 1977); Gates v. Cook, 376 F.3d 323, 336 (5th Cir. 2004);
Valigura v. Mendoza, No. 07-40284 (5th Cir. 2008), available at
http://www.ca5.uscourts.gOv/opinions/unpub/07/07-40284.0.wpd.pdf; Blackmon v. Garza, o. 11- 0316 (5th Cir.
2012), availabl at http://www.ca5.uscourts.gOv/opinions%5Cunpub%5Cll/ll-40316.0.wpd.pdf.

140 Smith v. Sullivan, 553 F.2d at 381 (5th Cir. 1977).
141 Gates v. Cook, 376 F.3d at 336 (5th Cir. 2004).
142 Id. at 339.
1 3 Valigura v. Mendoza, No. 07-40284, at 5 (5th Cir. 2008), available at
http://docs.justia.eom/cases/federal/appellate-courts/ca5/07-40284/07-40284.0.wpd-2011-02-25.pdf/1301264190.
144 Blackmon v. Garza, No. 11-40316 (5th Cir. 2012), available at
http://www.ca5.uscourts.gOv/opinions%5Cunpub%5Cll/ll-40316.0.wpd.pdf
145 Wat 10.

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considered a danger by the NWS, and on 11 of these dx s. he* index was considered an
extreme danger.”146 The court found that the TDCJ ta e

i' ~w ide remedial measures,

including failure to provide air conditioning, lack of pers aai fas . and indows that were
unable to open.147 Prisoners were forced to drink from their sin s because insufficient water was

provided to them.148 The court concluded that a reaso sh;~ find that this failure to
provide protective and remedial measures constit ted Jcdberu txffference to the health and
safety of the prisoner, and therefore a violation of his E -ghtr xx tdr cat rights.149

In light of these decisions by the Fifth Circun. ;:? = Si les District Court for the
Middle District of Louisiana issued a decision in D cem er 2C13 s ing that officials at a death
row detention facility viol ted the Eighth Amenckncsr The court determined that inmates
were subjected to ultiple consecutive days in which me eaE inde reached well over 100
°F151- levels considered by the National Weather Service tc- ccrs rcx c nditions that warranted
“extreme c ution” and “danger.”152 Furthermore, the cct r. rex the officials at the facilit 1

disregarded the subst ntial risk of serious harm to me tnmsc -mie of their knowledge of that
risk.1'''- This disregard, the court found, constit ed a-xiifference in violation of

officials Eighth Amendment obligations.1'4
Such conditions are present in many of the fact.rites rc uled by the TDCJ. On many
sum er days the heat inde is over 90 °F.155 Of those inmates wi.o hav e died fro hvperthermia

in Texas since 2007, the TDCJ was aware that all had preexisting conditions that rendere them
more vulnerable to heat-related illnesses, such as obesit , diabetes, and history of
hypertension.156 As mentioned, thirteen of the fourteen inmares ere also on prescribed

edication at the ti e of their deaths.157 Thes medications should have alerted medical staff to
inmates susceptibility to heatstroke. All inmates hose body temperature was e sured had
body temperatures of over 105 °F at the time of their
TDCJ officials were aware that these farscy peo le ore susceptible to
hyperthermia.159 Furthermore, TDCJ officials and mecScsa ersoeel knew of the medical
conditions and prescription drugs taken by the in ates ae 3aases away while the inmates were

under their care.160 Nevertheless, TDCJ officials did or proias dese particularly vulnerable
individuals from heat injury and death. To cite one eaxmx-sv r g onal director of the TDCJ
146

Id. at 8.
' Id. at 9.
'id.
19

at 11.
Ball v. LeBlane, 3:13-cv-13-00368-BAJ-SCR97 (M.D. La. 2 '

' Id. at 25.
153

NWS, supra note 7.
Ball v. LeBl nc, 3:13-cv-13-00368-BAJ-SCRat 31.

[Id at 12.
Climatology Comparison, supra note 4.
’ Amended Complaint, supra note 38, at 15.
id.
Deposition of Robert Eason at 76, McCollum et l. v. Livissssas. Xc
159
Amended Complaint, supra note 38, at 16.
’ Deposition of Glenda Adams, M.D. at 86, McCollum et aL
158

SY-02037 (N ). Tex. 2013).
3:12-CV-02037 (NX). Tex. 2013).

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Regioc U »» if care that eight detainees died in 2011 in his region, yet stated his belief that the
TDCJ d d '»oc bswe a problem with heat related deaths. He went so far as to say the TDCJ was
oing a ~woaikrrul job. 161 This is clearly a case in which prison officials ere aware of an
act al ctanger s> mmates and failed to prevent this danger. These conditions have not changed in

TDCJ tacTaes. wd as such the continuing threat to current and future TDCJ inmates constitutes
aa cmsx&fi eStearte indifference to the risks faced by these inmates. Even if inmates do not
acsaalh c-u a and future inmates are subjected to actual risks to their lives, and failing to

address mess risks constitutes deliberate indifference on the part of TDCJ officials. The Fifth
Cir ist has onoqssvocably held that this deliberate indifference to the risks of extreme heat on
ksTssEs ses±rfies a violation of the Eighth Amendment.
VL Frison Conditions Violate Inmates Human Rights
The S p eme Court has long held that when interpreting the concept of cruel and
uEKJsoHh iMssiifnent” under the Eighth Amendment, it is instructive and appropriate to look to
fBBsaeaataiL Hsasan Rights nor s.162 * * In the seminal case establishing that international concepts

o juseks w Tsiev nt to interpreting the Eighth Amendment, the Supreme Court noted that the
cofisdcsiceai nrohibition on “cruel and usual punish ent” traces its origin directly to the laws of
another nation.1 J For this reason, said the Court, the Eighth Amendment's meaning must be
dra n from the “evolving standards of decency that mark the progress of maturing society.” 6
In later cases, the Supre e Court noted that "the climate of international opinion

c ncerning the acceptability of a particular punishment” is an additional consideration hich is
“n t irrelevant”165 Further ore, the Court has “recognized the relevance of the views of the
.community”166 * in deter ining which punishments a “civilized society will not
ioU has said that "the over helming weight of international opinion... provides
-ij-,ificant confir ation to the Court s deter ination” that the penalty iolates the
E! - - ¦ e szrpcnt.168 The Court states that it does not lessen fidelity to the Constitution or

prkse m m ongms to ackno ledge that the express affirmation of certain fundamental rights by

" -Vc-vi- . V.ncrt Eason at 110, McCollum et at. v. Livingston,No. 3:12-CV-02037 (N.D. Tex. 2013).

~~ - Dulles, 356 U.S. 86,102-03 (U.S. 1958); Coker v. Georgia, 433 U.S. 584, 596 n. 10 (1977);
E ~ 45 U.S. 782, 788 (U.S. 1982); Thompson v. Oklahoma, 487 U.S. 815, 830 n. 31 (U.S. 1988);
A-.'.:-. ¦ . 536 U.S. 304, 325 (2002); Roper v. Simmons, 543 U.S. 551, 554 (2005). The Supreme Court has
_ as- sdonal norms in intapreting other portions of the Constitution besides the Eighth Amendment.
5*- oas, 539 U.S. 558,573 (U.S. 2003) (noting that the European consensus on repealing sodomy
Ay- Asr notion that banning sodotn>- was a fundamental aspect of Western civiliz tion).
=- Dundation for the phrase cruel and unusual'' stem ed fi-o the "Anglo-American tr dition of
-x .- is taken directly fro the English Declaration of Rights of 1688, and the principle itself came
-- -

--.v Trap v. Dulles, 35 U.S. 86, 100 (1958).

- ¦ -gia. 433 U.S. at 59

n. 10.

¦ r - O l homa, 487 U.S. 815, 831-32 n. 34 (1988).
-¦ et- ;ons. 543 U.S. 551, 554 (2005).

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other nations and peoples underscores the centrality of those same rights within our own heritage
of freedo . 169

Thus, the Supreme Court has been unequivocal in stating that human rights are highly
persuasive in guiding Eighth A endment analysis.
VII, Texas Violates Human Rights Obligations Regarding Detention Conditions
The lack of adequate TDCJ policies and standards for dealing with hyperthermia and
exposing in ates to extreme heat constitutes a violation of inte ational human rights standards
and of the requirements of the Eighth Amendment. States, including Texas, have both positive
and negative obligations170 to not only respect the right to life and the right to humane
detainment, but also to guarantee that these rights be respected. Because the State exercises total
control over individuals deprived of their liberty, the State bears an additional heightened
obligation to guarantee these several rights of inmates.171 Furthermore, where the State is aware
of a real and imminent danger for a specific individual or group, the State has an obligation to
adopt additional reasonable prevention and protection measures.172 TDCJ officials are aware of
the increased risk of heat-related injury and death faced by detainees with pre-existing medical
conditions and those taking psychotropic medications, yet the TDCJ continues to fail its
obligation to implement proper preventative measures.

169

170 Report on Citizen Security and Human Rights, Inter-Am. Comm n H.R., OEA/Ser.L/V/II, doc. 57 ch. IV 35
(2009), vailable at https://wv v.oas.org/en/iachr/docs/pdf7CitizenSec.pdf.
171 Pacheco Teruel et al. v. Honduras, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R.
(ser. C)No. 1211 64 (2012), available at http://www.corteidh.or.cr/docs/c sos/articulos/seriec_241_ingl.pdf.
172 Pueblo Bello Massacre v. Colo bia, Interpretation of the Judg ent of Merits, Reparations and Costs, Inter-Am.

Ct. H.R. (ser. C) No. 1401 120 (2006), available at
http://-www.corteidh.or.cr/docs/casos/articulos/seriec_140_ing.pdf.

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Although persons who are incarcerated have been deprived of their right to liberty, these
individuals still retain most of their fundamental human rights, most notably the rights to dignity,
life, security of person,173 174 the right to be free of inhuman or degrading treatment, and the right e
health.175 Nearly every body of human rights law includes provisions specifically for me
protection of prisoners rights.176 The fact that this idea has such universal support demonstr®es
that guaranteeing the protection of basic rights of inmates has become part of customs
international law, which comes from a general and consistent practice by other nations. In br rfe
sub itted to the Inter-American Commission on Human Rights (IACHR), the United States has
relied on the concept of customary international law, showing that the the United States acce
the binding nature of customary inte ational law.177
173 Photograph, Tex. Dep t of Criminal Justice, Polunsky Unit Interior, Livingston, TX (Jan. 1,2006) (on file \* e
author).
174 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/Res/217(10), art. 3 (Dec. 10, 1
175 Id. art. 5.

176 See, e.g., id. art. 3; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc.
A/6316, art. 10 (Dec. 10,1948); Inter-Am. Comm n H.R. [IACHR], Principles and Best Practices on the Pro,
of Persons Deprived of Liberty i the Americas, Res. 1/08 (March 13, 2008), a ailable at

htt ://www.cidh.oas.org/pdI%20files/RESOLUTION%201_08%20-%20PRINCIPLES%20PPL%20FINAL.pc:
[hereinafter Pri ciples and Best Practices]', American Declaration on the Rights and Duties of Man, Ninth
International Conference of A erican States (19 8), OEA/Ser.L.V/II.82, doc. 6 rev. 1 art. XV (1992).
177 Response of the Government of the United States of America to Inter-American Commission on Human R pg-

Digest of United States Practice in International Law 2004, Ch. 18, doc. 60 (2004); RESTATEMENT (THIRD) Of Ti*
Law of the Foreign Relations or the United States § 101 cmt.c(1987).

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Texas' firs ofcjisfaBesi 10 persons deprived of libert and under its control is to guarantee

the right to life Yan as anan rights bodies have unanimously affirmed the right of all people
to preserve their Sves. A was noted before, the State bears an increased duty in guaranteeing

this right to th se deprived of liberty and under the control of the State.178 The reason for placing
an increased bor ais s-r. , e Sisie to guarantee prisoners rights was summarized by the IACHR:

The St*, ty oe - rng a person of his liberty, places itself in the unique position
of gessor ofii s rigrit to life and to humane treatment. All this means that the
act of sssacsc rries with it a specific and material commitment to protect
the priscsier hsrxsn £gnity so long as that individual is in the custody of the
State, whkh fedudes protecting him from possible circumstances that could
imperil bis life heelt and personal integrity, among other rights.179 180
This quote aisc> frfesccsEes fear the State also has the equally important duty of guaranteeing
prisoners’ faeshh aad fegrr y The International Covenant on Civil and Political Rights (ICCPR),
the Universal or Human Rights (UDHR), and the A erican Declaration on the
Rights an Dun s ci ¦.. DRDM) all acknowledge the basic and unalienable dignity that
every indh u i Likewise, both the UDHR and the ADRDM include the right to
health as one of fee fisadamental rights retained by all human beings.181 There are no
justifications for a State to fail to meet these basic obligations, not even financial constraints.
Both the Inter-A erican Court of Human Rights (lACtHR) and IACHR have steadfastly
maintained that economic hardship and financial difficulties may not be invoked by States in
order to justify detention conditions that fail to meet international standards.182
It is also i mortant to note that the human rights bodies have repeatedly held that the
State’s obllg z-/.-; av -d Torture and inhuman or degrading treatment or punishment are

banned in abs fei r -r spective of the victim's conduct or the financial situation of the
State.183 The reasc- tc: Te right to be treated with dignity is considered so fundamental to
prisoners’ right - being stripped of dignity can result in, feelings of anguish and
inferiority capable cf bum: sing and debasing [prisoners] and possibly breaking [their] physical
178 Pacheco Tenfe e: i Inter-Am. Ct. H.R. (ser. C) No. 121,

64 (2012), available at

http://www.cor „ - __ »_-*articulos/seriec_24 l_mgl.pdf.

179 Minors in C se 11.491, Inter. Am. Comnrn H.R., Report No. 41/99, OEA/Ser.L./V/II,95,
doc. 7 rev. 135 • i http://wwwl.urrm.edu/ h inanrts/cases/1998/honduras41-99.html.
180 Internatiofe 7 - ~ . 3 and Political Rights, supra note 176, art. 1; Universal Declaration of Human
Rights, supra n -- - r ican Declaration on the Rishts and Duties of Man, supra note 176, art. I.
181
Universal r Rights, supra note 174, at 25; American Declaration on the Rights and Duties
of Man, supra -st-a- - .

182 Report of tic _ - v-iimmission on Human Right on the Situation of Persons Deprived of Liberty in
Honduras, Inrr * - ¦ . OEA/Ser.L V/n.147, oc. 6 5 74, 104 (2013), available at
https:// w.a®>,<-r-cr . docs/pdf/HONDURAS-PPL-2013ENG.pdf.
183 See, e.g.. Ir -iv. . . r_js dom, App. No. 5310771, f 163 (1978), available at

http://hudoc .-.T_r:c_ ; - . gpages/search.aspx?i=O01 -57506 ( The Convention prohibits in absolute terms
torture and rnr_rr_r treatment or punish ent, irrespective of the victim s conduct. Article 3 akes no
provision for there can be no derogation therefrom even in the event of a public emergency
threatening m re ~itr- -jz reu ).

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-or iMotl resistance. 184 Because basic dignity is fundamental to every human being, depriving
185
soseoee of dignity is a form of inhuman treatment.

Texas positive obligation to guarantee inmates’ right to health is particularly important.
Prisoners have no other way of accessing medical treatment, and as such are entirely reliant on

ry TDCJ to ensure their well-being. The IACHR has found violations of the right to health
m e y risoners had medical conditions that prison officials were aware of, and yet no measures
rafci-n to address these health problems.186 This exact same scenario has occurred and is

rs aras in TDCJ facilities. The TDCJ is aware that certain medical conditions and
aesScsions increase prisoners’ susceptibility to heat related illness, and yet there still e ist no
rsx®er procedures for protecting these vulnerable inmates’ health.

Persons deprived of their liberty have been dyi g in the custody of the TDCJ from
rseve ble causes. The fact that officials at the TDCJ were aware of risks to inmates that rose to
t rwri of a substantial threat to their health, safety, and dignity shows that the state of Texas is
acs: img adequate measures to protect the physical well-being of those detained by the TDCJ.
if raoeang else, this in itself demonstrates that Texas is failing its obligation to guarantee the
igtg to life, health, and dignity of those persons deprived of liberty and under control of the
As all inmates at TDCJ facilities are exposed to these extreme temperatures, even those
wh have not died have had their lives put at risk by the TDCJ as a fesult of the lack of
preventative and remedial measures to address extreme heat, and their rights to health and to be
treated with dignity have been violated.
Vm. Te as Fails Its Duty to Prevent Cruel. Inhuman, or Degrading Treatment
Texas violates all TDCJ inmates’ rights to not be subject to cruel, inhuman, and
acsa mg treatment. The general standard regarding treatment of persons deprived of their
SImtv was first set out by the United Nations in the UDHR. Article 5 of the UDHR states that
«

J

*

*187

so aie shall be subject to torture or cruel, inhumane, or degrading treatment or punish ent.

Trris standard has since been reiterated in almost every ajor body of human rights law,
s is ing but not limited to the ICCPR,188 the Convention Against Torture and Other Cruel,
_Tr an or Degrading Treatment or Punish ent (CAT),189 the American Convention on Human

Rsiss (ACHR),190 the ADRDM,191 and the European Convention on Human Rights (ECHR).192

* v. Greece, App. No. 28525- 5 il 21-22 (2001), available at
SM5oc.echr.coe.irrb sites. fra pas:e ,/search.aspx?i=001-59413.

- srhew v. The Netherlands, A p. No. 24919/03 T 216 (2005), available at
s z. . sidoc.echr.coe.iitt/sites eng'pa es/search.aspx?i=001-70377.

Elias Bisect et al. v. Cuba, C se 12.476, Inter-Am. Comm'n H.R., Report No. 67/06, OEA/Ser.L./V/IL127,
4 rev. 1 T 157 (2007), a ailable ar-http://wwwl,umn.edu/humanrts/cases/67-06.html.
: niversal Declaration of Human Rights, supra note 174, at 71.
* i ternational Covenant on Civil and Political Rights, supra note 176, art. 7.
Convention a inst Torture and Other Cruel, Inhum n or Degr ding Tre tment or Punish ent, G.A. Res 39/46,
; N. Doc. A/39/51, art 16 (Dec. 10,1984).
American Convention on Human Rights, supr note 176, art. 5.
American Declaration on the Rights and Duties of Man, supra note 176, art. XXVI.

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The purpose of this standard is to ensure that all persons deprived of their liberty be treated with
respect and the inherent dignity of a human being.
Although the phrase torture or cruel, inhuman, or degrading treatment or punishment is
somewhat vague, various inte ational human rights bodies have developed an in-depth body of
case law regarding this standard. These standards and recommendations include, but are not
limited to, the UN s Standard Minimum Rules for the Treatment of Prisoners, 192 193 the lACHR s
“Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas,”194 and the Council of Europe s “Recommendation of the Committee of Ministers to
Member States on the European Prison Rules.”195

The most substantial body of case law regarding what constitutes “torture or cruel,
inhuman, or degrading treatment or punishment” has been established through litigation in the
European Court of Human Rights and in the Inter-American system. For the purposes of this
report, the case law regarding detention conditions will be analyzed collectively because their
decisions are highly uniform, the international human rights bodies often cite one another, and
because the Inter-American system has e pressly adopted many of the Europeans Court of
Human Right’s (ECtHR) standards regarding detention conditions.196
Nonetheless, the decisions from the IACHR and LACtHR are more relevant than the
ECHR and the ECtHR. As a member of the Organization of American States (OAS), the United
States is a signatory of the ACHR.197 The Convention establishes the lACtHR as the court
competent to address matters arising from commitments made under the ACHR.198
Because the term “torture is generally isolated as a specific breach requiring intentional
infliction of a very severe harm,199 the international human rights bodies have generally focused
on determining what conditions constitute inhuman or degrading treatment or punishment by
considering the relevant standards in cases most analogous to extreme heat issues in Texas
prisons. 200

192 European Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4,1950, E.T.S.
No. 5,213 U.N.T.S. 221.

193 Standard Minimum Rules for the Treatment of Prisoners. E.S.C. Res. 663C, Annex 1, at 11, U.N. Doc.

A/CONF/611 (July 31,1957), amended by E.S.C. Res. 2076, at 35, U.N. Doc. E/5988 (May 13, 1977).
194 Principles and Best Practices, supra note 176.
195 Council of Europe: Com ittee of Ministers, Recommendation Rec(2006)2 of the Committee of Ministers to
Member States o the European Priso Rules, Rec(2006)2 (Jan. 11,2006), available at
https://wcd.coe.int/ViewDoc.jsp?id=955747.
196 See, e.g., Luis Lizardo Cabrera v. Do inican Republic, Case 10.832, Inter-Am. Comm'n H.R., Report o. 35/96,
OEA/Ser.L. V/II.98, doc. 7 rev. 821 (1997), available at http://v vwl.umn.edu/humanrts/cases/1997/domrep3596.html (referring to the definitions from the European Commission on Human Rights and the European Court of
Human Rights to distinguish inhuman and degrading treatment from torture, and adopting its own criterion that

included some, but not all of the criteria fro the European bodies).
197 Org. of Am. States, Am. Convention on Human Rights, ov. 22,1969, OA.S.T.S. No. 36,1144 U.N.T.S. 123.
198 art. 33/
199 See, e.g., Convention against Torture, supra note 189, art. 1.

200 The European Commission on Human Rights has distinguished between inhuman and degrading, defining
inhuman as severe suffering, ment l or physical, hich, in the particular situation is unjustifiable, and degradin
as grossly humilia ing] him before others or driv ng] him to act against his conscience. See Brice DICKSON, THE

European Convention on Human rights and the Conflict i Northern Ireland 140 (2010) (quoting

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There is no definitive test or any explicit list of factors to determine whether ocstioe
conditions constitute inhuman or degrading treatment or punishment. Instead, kstersKiaEa.'

human rights bodies have favored an approach that requires analysis of conditions be one solel
on a case-by-case basis.201 In each case brought by a person deprived of libert regarding

detention conditions, the human rights body will analyze the circumstances specific sc the
complainant, requiring that the situation reach a minimum level of severi ' in order to
constitute inhuman or degrading treatment. 202 The evaluation of this minimum level of sever t
is highly dependent on a broad analysis of all the relevant circumstances that affect conditicss of
detention.203 The international human rights bodies will generally consider many factors sacit as.
but not e clusively, the duration of the treatment, and its physical and mental effects, as itefi as
the sex, age, and health of the victim.204
It is important to note that that the Texas obligation to avoid subjecting persons dcprivsc
of their liberty to cruel, inhuman, or degrading treatment or punishment consists of bofe

negative and positive obligations. Texas not only has the obligation to refrain fro® caosEg a
prisoner to be subjected to cruel, inhuman, or degrading treat ent or punishment' Tex* aisc

as guarantor of life and physical nd psychological integrity of those under its eoraret ass ae
additional positive obligation to prevent third parties from unduly interfering with the esfrcyTsos
of rights and personal liberty.205 This obligation imposes a duty on Texas to “
person deprived of their liberty s] health and well-being are adequately secured by, amon other
things, providing him with the requisite medical assistance. 206 This duty is especially relevant to
the most vulnerable detainees, including children, the elderly, and people with disabilities or
medical conditions because in these cases Texas’ obligations increase considerably. For example,

in Brown v. Jamaica, the complainant charged that he suffered an asthma attack hile in
extremely hot cells during pre-trial detention. The Human Rights Committee ruled th* tbe hsrr
suffered by the complainant hile detained in these conditions and the denial of esescse.
medical treatment, adequate nutrition, and clean drinking water was a violation of bo® arocies '

Denmark, Norway, S eden and the Netherlands v. Greece, App. Nos. 3321/67, 3322/67, 3323/67 anc
Y.B. Eur. Conv. on H.R. 186 (Eur. Comm n on H.R.) (1969)). However, more recentl , the courts hrve
inhu an and degrading together. See, e.g., lorgov (II) v. Bulgaria, A p. No. 44082/98 (2010), availar
http://hudoc.echr.coe.int sites/eng/pages/search.aspx7H001-100271; Mayzit v Russia, App. No. 63378.-.'.' .2. 0 ,
available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx7H001-68067.
201 Ireland v. United Kingdom, App. No. 5310 71, 12 (1978), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx7H001-57506 ( It is thus left to be determined la 3k .a e s. ac
circumstances of each particular case whether what occurred amounted to, or constituted the specifies: sa gg.

202 /d. at 162 (1978).
203 Id.
'm Id.

205 Ximenes-Lo es v. Brazil, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 149 ** fc» 'Jmsy
available at http://www.corteidh.or.cr/docs/casos/articulos/seriec 149_ing.pdf.
205 Kudla v. Poland, App. No. 30210/96, 35 Eur. a. H.R. Rep. 198 (2000), available at
http://hudoc.echr.coe.int/sites/eng- ress/pages/search.aspx7H001-58920.

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and 10 of the ICCPR (relating to cns or amatal punishment and preserving the dignity of
incarcerated persons, respectivel ).-'
International human rights bodies have consistently considered extreme temperature and
lack of adequate heating or ventiiatian. sn iiar to to the conditions in Texas, as factors that
contribute to detention condilk*s b in consi ered inhumane or degrading treatment or
punish ent. For example, in Peers v. Greece, rhe complainant suffered from extreme heat in

an overcrowded segregation unit kh poor vcndkEion and a bro en toilet with no privacy from
the other i mates.207 208 In the winEr. hearing was only provided for two hours a day.209 The

European Court considered the act am rbe applicant was placed in the segregation unit when
temperatures rise considerably , aod rrfcrre ro witness testimony that the complainant was
affected by the heat and lack of vc aR is the cell.210 211 Given these extreme heat conditions
and the lack of action by Gree aoSiKrst s remedy the situation, the European Court found
that the complainant had been ssiwscas so ssminan and degrading treatment, and that the

government had violated Article 3 of me European Convention the prohibition against
inhuman and degrading trearmgnr ~ ; A - nnnally. in Strucl and others r . Slovenia,
overcrowding212 and temperatures a -gra q- ararad 82.4 °F and occasionally exceeding 86 °F213

contributed to conditions that exce ded a hreshold of severity' of suffering in detention that
amounted to degrading treatment and a vaosapoo of Article 3.214 215 Following the same reasoning,

in Lautaru v. Romania, the European Court of Human Rights found that living in an
overcrowded facility with summer temperatures reaching over 104 °F in a cell, where a window
grille prevented proper ventilation of hot air in the cell, constituted a violation of Article 3.
The ECtHR has even go so far as to proclaim that [ t is] unacceptable that anyone
should be detained in conditio s mv.-'Tvmg a lack of adequate protection against... extreme

temperatures.”216 Neither the EC ES ™ me LACtHR has ever expressly stated what
temperatures constitute extreme best ~ =~=s*tively held that air conditioning is a requirement
to prevent inhumane detention cos zf r ns. H wever, because the human rights bodies have

repeatedly held that the State mux ac ithin its power to minimize the suppression of

207 Brown v. Jamaica, Case No. CCPR.C ~ iriRR 978 (199 ), available at
http://wwwl.umn.edu/humanrts/undocs- -' '-Him.

20 Peers v. Greece, App. No. 28525/95 ¦* II-Z2 . - available at
ttp://hudoc.echr.coe.mt/sites/fra/ ages 1-59413.
209/d. 31126.
210 id. at 72.
211 Id. at 175.
212 Strucl and others v. Slovenia, App. ' cu - ? 10, 6544/10
http://hudoc.echr.coe.int/sites/eng/pagei. I -107141.

52 (2011), available at

213 Id. at 87.

214 M t 89.
215 Lautaru v. Romania, App. No. IS'I" --*1 - -3311X available at

http://hudoc.echr.coe.int/sites/eng/pago ' =001-107028.
216 Mathew v. The Netherlands, Ap . v-: I -ih: - I. * 116 (2005), available at
http://hudoc.echr.coe.int sites/eng/pagi- -rch =001-70377.

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individual rights and to ensure health and welfare of detainees.217 the State has the duty to
provide minimum material requirements,218 and there are no mitigating circumstances for t ese

obligations.219 In fact, while the European Committee on the Prevention of Torture (CPT) has
acknowledged that it has not specified an ideal maximum temperature for prison cells, it has
made it clear that... excessive heating, whether artificial or natural, is... to be avoided. 220

Therefore it is clear that under current human rights standards, Texas, as the guarantor of rights
of those under its custody, has an unmitigated duty to provide adequate relief from extreme heat.
Reports published by the various human rights bodies have also repeatedly condemned
facilities throughout the world for their inadequate detention conditions relating to extreme
climatic conditions. For example, a modem prison built in Peru in 1997 had no provision for
basic w ter, po er, or communications services.221 Inmates were exposed to temperatures in the

winter that fell to -4 °F 222 No heating mechanism was available in cells or corridors, and the
cold was exacerbated by humidity from leaking water, which could not be removed due to lack
of ventilation.223 The Inter-American Commission found that the Pemvian State had failed to
comply with its obligations under the U.N. Standard Minimu Rules for the Treatment of
Prisoners as well as the Pemvian Constitution to provide prisone at Challapalca with adequate
facilities.224 Likewise, a facility in Jamaica was found to be in serious violation of the right to
humane treatment” as a result of inmates being exposed to extreme heat with a lack of adequate
ventilation.225 Similar conditions lack of ventilation and oppressive heat”226 created a
“suffocating atmosphere” in prisons in Honduras and Suriname.227 The IACHR found that Cuban
political dissidents were held in cramped cells without any means to endure temperature
extremes.228 In another facility in Benin, heat indices reached 123.8 °F to 129.2 °F.229 The
United Nations Subcommittee on the Prevention of Torture recommended these conditions be

217 Montero-Aranguren et at (Detention Center of Catia) v. Venezuela, Preliminary Objection, Merits, Reparations
and Costs, Inter-Am. Ct H.R. (ser. C) No. 150,1] 86 (July 5, 2006).
218 Yvon Neptune v. Haiti, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 180, 138 (May 6,2008).

219 See Ireland v. United Kingdom, App. No. 5310/71, 163 (1978), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57506 ( Article 3... akes no provision for exceptions
and... there can be no derogation therefrom even in the event of a public e ergency threatening the life of the
nation. ).

220 Rod Morgan & Malcolm d. Ev ns, The association fo the Prevention of Torture, The prevention

of Torture in Europe (2001), available at http:/ www.apt.ch/contenfrfiles_res/APT%20CPT%206%20En.pdf.
221 Special Report on the Human Rights Situation at the Challapalca Prison, Department of Tacna, Republic of Peru,
Inter-A . Comm'n HJC, OEO/Ser.L/V/II.118, doc. 3 23 (2003).
222 fri at 26.
223 /di at 38.
224 Id. atYJ 104. 116.
225 Re ort on the Situation of Human Rights in Ja aica. Inter-Am. Com 'n H.R.. OEA/Ser.L/VA1.144, doc.
12 201 (Aug. 10. 2012). ovaiVob/e ol https://ww .oas.org/en/iachr/docs/pdf/Ja aica2012eng.pdf, _ .
226 Report on the Human Rights of Persons Deprived of Libert in the Americas, Inter-Am. Comm n H.R.,

OEA/Ser /V/H, doc. 64 f 402 (Dec. 31,2011).
721 Id. at «  288.
228 Id at 401.
229 UNI. Subcommittee on Prevention of Torture, Report on the visit of the Subcommittee on Prevention of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment to Benin, CAT/OP/BEN/1, 180 (2011).

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the subject of urgent review, that inmates be provided natural light and ventilation, and that
measures be put in place to reduce the temperature extremes.230 In the country of Georgia, many

facilities had unheated cells,231 and temperatures in facilities were found to be as low as 59 °F.232
These conditions led the European Committee Prevent Torture to recommend that cells be
properly heated 233
The U.N. s Standard Minimum Rules for the Treatment of Prisoners explicitly states a
heightened concern for the condition of detention regarding climate. Paragraph 10 states, All
accommodations provided for the use of prisoners... shall meet all requirements of health, [with]
due regard being paid to climatic conditions... [including] heating and ventilation (emphasis
added).234 235 A similar conce over climatic conditions in expressed by the IACHR in their
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas. Principle XT states that “Persons deprived of liberty shall have adequate floor space,
daily exposure to natural light, appropriate ventilation and heating, according to the climatic
235

conditions of their place of deprivation of liberty (emphasis added).
The conditions in Texas prisons violate these obligations. The very fact that prisoners are
dying for preventable reasons demonstrates that the fundamental right to life has been violated in
contravention of the Te as duty to ensure this right. Furthermore, subjecting inmates to
extended periods of extreme heat rises to the level of inhuman treatment and is a violation of
their right to health and dignity. The extreme heat in the cells where the inmates died violate the
standards established by every organization that has explicitly considered the issue of regulating
exposure to extreme heat.

IX. Conclusion and Recommendations
Given the current situation in Texas prisons, the University of Texas School of Law
Human Rights Clinic concludes that the extreme heat in certain Texas prisons violates
international human rights standards that require Texas to guarantee the right to life and physical
integrity of prisoners, prisoners’ right to health and to be treated with dignity, and to prevent
prisoners from being subjected to inhumane or degrading treatment or punishment. These
standards require the TDCJ to guarantee these rights for all prisoners, not just those that are
particularly susceptible to heat-related injury. The extreme heat in Texas prisons risks the lives
of all inmates that are subject to these conditions, and this violates their physical integrity as
well. The continuing lack of standards and preventitive measures to address these risks increases
the seriousness of the violations. Inte ational human rights standards notwithstanding, the

230 Id. at 190.
231 European Committee for the Prevention of tortu e and Inhuman or degrading Treatmen or

Punishment (CPT), Report to the Georgian Government on the Visit to Georgia 42,108,138 (2010).
232 Mat 1)92.
233 . at 1 95.
23 Standard Minimum Rules for the Treatment of Prisoners, s pra note 193,1j 10.
235 Principles and Best Practices, supra note 176, at XI.

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temperature extremes in Texas prisons also constitute a violation of the Figaa teiradment s

prohibition of cruel and unusual punishment.
The Human Rights Clinic recommends the following actions to fcrrasfixdy eliminate
the TDCJ s current practice of inhumane treatment of its prisoners in extrem heat caodiaons:

1. The Texas Department of Criminal Justice should immediaaci csxi assi siplement
preventative policy measures for the coming summer mont s to prrvtse exposiag inmates

to extreme heat conditions and, particularly, to avoid additional hea-rssaes i aies and
deaths. Permanent and adequate measures should, at the least mcki e ®s£aOa£ion of air

conditioning units to keep temperatures in inmate housing areas hek»» &5 U til this is
completed, TDCJ should take additional precautions to reduce t e of is ttry and
death, including:
a. Immediate screening of all new inmates for health cxradincsjs arTPc iczffions that

could make them ore susceptible to heat-related illness:
b. Immediate movement of more susceptible new inmates s sess that do
not h ve temperatures e ceeding 85 °F;
c. If areas at a safe temperature are not yet available, coodiKioes monitoring of

susceptible new inmates which starts immediately after screening;
d. Frequent monitoring of any inmates housed in non-air-conditioned units when

temperatures in inmate housing areas exceed 85 °F;
e. Provision of constant inmate access to cool liquids and ice: and

f. Uniform documentation of these practices, including rm ser cf r ses classified
as susceptible to heat-related illness and quantity of cool rovided per
inmate.

2. In the long term, either by promulgation of new TDCJ polic or by amga ment of the
Texas Administrative Code, a maximum temperature standard Aoiiki be ssKrall TDCJ
facilities. This standard should mirror the standards profselsEsc die Texas
Commission on Jail Standards and the standards TDCJ currcr '~- ® r* ace for the

prison workplace. Specifically, the standard should follo iassscaG csrecedent and
adopt a maximum temperature standard of 85 °F throughout scSSses. ascluding in
prison cells and inmate housing areas.

3. The TDCJ Board and Texas Legislature should approve ftr

r

installation of permanent air-conditioning at TDCJ prison

-ve ssary for
to ensure

temperatures do not exceed 85 °F.

It is likely t least some facilities will require the addib-w' chher emporary or
permanent air conditioning units in order to comply with this ne\* scksust. Hc rver, this is a

cost that must be incurred. Continuing to disregard the plight ot T DC -i sases subject to
extreme heat is not an option; the TDCJ would be in violation of hu an rights

35

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Mdards and the requirements of the Eighth Amendment if it were to do so. The TDCJ ust
ase anion to stop its continuing violation of several human rights of prisoners in Texas risons.

36

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