by Matthew Clarke

On January 31, 2018, the Fifth Circuit Court of Appeals held that a district court erred when it mandated a maximum-allowable heat index measure for a Louisiana’s death row. The court upheld the lower court’s finding of an Eighth Amendment violation due to excessive heat and requiring the use of Icy Breeze units as a component of heat reduction.

Louisiana death row prisoners Elzie Ball, Nathaniel Code and James Magee filed a federal civil rights lawsuit alleging excessive heat in their cells violated their Eighth Amendment rights. The plaintiffs all have medical conditions that make them vulnerable to heat-related injury. Their un-air-conditioned cells often show heat indices exceeding 100 degrees.

The court issued an injunction that effectively required Louisiana “to install air conditioning throughout death row housing’ by developing ‘a plan to reduce and maintain the heat index … at or below 88 degrees Fahrenheit.”

Defendants appealed and the Fifth Circuit reversed, holding the court’s plan exceeded the bounds of the PLRA and Gates v. Cook, 376 F.3d 323 (5th Cir. 2004), by mandating facility-wide air conditioning and setting a maximum heat index. It suggested that, on remand, the district court consider other potential remedies, such as diverting cool air from the guards’ area, allowing access to air conditioning during out-of-cell time, allowing a cool shower at least once daily, providing “ample” cold drinking water, ice, ice containers and personal fans, and installing additional ice machines.

On remand, the district court had defendants submit a second heat remediation plan. The second plan included allowing a daily cold shower, providing ice containers to be replenished from ice machines and providing a personal fan. Plaintiffs did not agree with the second plan, so the court held hearings and imposed a third plan, which added to the second plan diversion of air-conditioned air from the guards’ area, providing each plaintiff with an Icy Breeze unit—essentially an ice chest with a fan that blows cold air—regularly replenishing the Icy Breeze with ice from an ice machine and requiring these things whenever the heat index exceeds 88 degrees. Defendants appealed, alleging the imposition of a heat-index ceiling and requiring air conditioning via Icy Breeze violated the remand order.

The Fifth Circuit agreed with the defendants that the remand order foreclosed any consideration of a maximum permitted heat index. However, it disagreed that requiring the use of the Icy Breeze units was the equivalent of mandating air conditioning. The Icy Breeze units cost just over $500 each and using them to control the cell temperatures for all plaintiffs would cost under $2,000, compared with a cost of about $100,000 to air-condition death row. This is sufficiently inexpensive to satisfy the court’s PLRA concerns.

The court noted that a temperature trigger is necessary to ensure that the injunction is not enforced during months when there is no heat risk. Thus, whereas a maximum allowed heat index is not permitted, a temperature trigger may be incorporated into a new plan on remand. Therefore, the court reversed and remanded the modified injunction for the district court to impose a new plan that did not incorporate a maximum heat index. See: Ball v. LeBlanc, 5th Cir., No. 17-30052

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