     Case: 14-40459     Document: 00513277410     Page: 1   Date Filed: 11/18/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT       United States Court of Appeals
                                                      Fifth Circuit

                                                                              FILED
                                                                         November 18, 2015
                                   No. 14-40459
                                                                            Lyle W. Cayce
                                                                                 Clerk
RAMONA HINOJOSA, Individually as a Wrongful Death Beneficiary and as
the Heir to the Estate of Albert Hinojosa,

               Plaintiff – Appellee,

v.

BRAD LIVINGSTON; RICK THALER; WILLIAM STEPHENS,

               Defendants – Appellants.




                  Appeal from the United States District Court
                       for the Southern District of Texas


Before REAVLEY, JONES, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      In this interlocutory appeal, Brad Livingston, Rick Thaler, and William
Stephens (collectively “Defendants”) challenge an order of the district court
that deferred ruling on their motion to dismiss on the basis of qualified
immunity and ordered limited discovery. Because the district court correctly
concluded that the complaint was sufficient and that further factual
development was needed to rule on Defendants’ qualified immunity defense,
and because the discovery that the district court ordered was narrowly tailored
to the facts needed to rule on the defense, we lack jurisdiction over this appeal
and dismiss.
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                                      No. 14-40459
                                             I.
       On August 29, 2012, Albert Hinojosa died of complications from
heatstroke while he was incarcerated at the Garza West Unit of the Texas
Department of Criminal Justice (“TDCJ”). 1 Shortly after midnight, an inmate
reported that Hinojosa had fallen out of his bed and was convulsing.                      A
correctional officer found Hinojosa on the floor of his cell.                     He was
unresponsive, and his skin was hot to the touch. The officer’s supervisor called
for an ambulance, but Hinojosa was pronounced dead twenty minutes after it
arrived.    An autopsy concluded that he “was vulnerable to the effects of
environmental hyperthermia due to pre-existing natural disease, and likely
suffered a seizure followed by fatal cardiac arrhythmia.”
       Hinojosa’s mother and sole heir, Ramona Hinojosa, sued numerous
prison officials and employees, the TDCJ, the University of Texas Medical
Branch (“UTMB”), and an official of UTMB, alleging that they were responsible
for her son’s death. 2      She asserted claims under 42 U.S.C. § 1983, the
Americans with Disabilities Act of 1990 (“ADA”) and the ADA Amendments
Act, 42 U.S.C. § 12131 et seq., and the Rehabilitation Act of 1973, 29 U.S.C.
§ 794. Only the § 1983 claim is at issue in this appeal. Hinojosa’s mother
premised her § 1983 claim on an asserted Eighth Amendment violation,
alleging that the conditions in which Defendants housed Hinojosa posed a
substantial risk of serious harm, and that Defendants acted with deliberate
indifference toward Hinojosa’s health and safety needs.




       1For purposes of this appeal, we take the complaint’s factual allegations as true and
view them in the light most favorable to the plaintiff. See Atteberry v. Nocona Gen. Hosp.,
430 F.3d 245, 252 (5th Cir. 2005).

       2Ramona Hinojosa passed away during the pendency of this appeal, and Rene Arturo
Hinojosa—Ramona’s grandson and Albert’s nephew—is now pursuing this suit as
representative of Ramona’s estate.
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                                     No. 14-40459
      The complaint alleges that at the time of his death, Hinojosa was forty-
four years old and obese, and he suffered from hypertension, diabetes,
depression, and schizophrenia—conditions that made him susceptible to heat-
related illnesses.      According to the complaint, Hinojosa took various
medications for his ailments, a common side-effect of which is that they render
patients more vulnerable to the heat. The complaint alleges that, as reflected
in TDCJ policies, Defendants knew that these conditions and medications put
affected prisoners at an increased risk of heat-related illness.                 Indeed,
according to the complaint, from 2007 until Hinojosa’s death, thirteen other
men had died from heat-related causes in TDCJ prisons.                  Many of these
individuals allegedly suffered from ailments—and had been prescribed
medications—similar to Hinojosa’s. Moreover, the complaint alleges that like
many of the other deceased prisoners, Hinojosa had recently been moved from
a climate-controlled county jail, 3 and he died shortly after his arrival at a non-
air-conditioned TDCJ transfer facility before he had much time to acclimatize
to the high temperatures of the new environment. The complaint alleges that
TDCJ policies acknowledged the importance of acclimatization to reduce the
risk of heatstroke, but TDCJ did not have any housing assignment policy for
newly arrived inmates to help them acclimatize.
      According to the complaint, although certain parts of the Garza West
Unit have air conditioning, those portions used to house inmates do not, and
the Unit’s windows are sealed shut.             The complaint alleges that summer
temperatures inside the Unit routinely exceed 90°F, and even 100°F. The
complaint specifically alleges that the day before Hinojosa died, the
temperature at the Unit surpassed 100°F, and in twenty-seven of the twenty-


      3By law, the indoor temperature of Texas county jails generally must be kept between
65°F and 85°F. See 37 Tex. Admin. Code §§ 259.160, 260.154.

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                                 No. 14-40459
eight days preceding his death, the temperature rose above 95°F. According to
the complaint, while TDCJ policies dictate that inmates with heat-sensitive
conditions not work or recreate in environments where the apparent air
temperature is 95°F or higher, they do not address housing assignments for
such inmates. In addition, according to the complaint, inmates sometimes wait
up to ten days to receive their intake physical examination after their transfer
to TDCJ custody. These physicals provide the first opportunity to detect and
treat inmates’ heat-sensitive medical problems, and the complaint alleges that
TDCJ will not allow newly arrived inmates to labor outdoors until they have
received an intake physical. But what is true for work is not true for housing,
the complaint asserts. According to the complaint, before they receive their
intake physicals, newly arrived inmates may not labor outdoors in high
temperatures, but they are nonetheless housed in high indoor temperatures
along with the rest of the inmate population.
      The complaint alleges that despite their awareness of numerous prior
heat-related fatalities, Defendants took no corrective action. Under policies
that Defendants allegedly implemented and could have changed, no housing
accommodation was made for newly arrived inmates or inmates with heat-
sensitive medical conditions. The complaint asserts that Thaler and Stephens
routinely reviewed reports of heat-related injuries and deaths and regularly
discussed those incidents in meetings with their deputies. According to the
complaint, however, they made no changes to inmates’ accommodations, failed
to ensure that inmates timely received intake physicals, and failed to
implement any other protective procedures. Livingston also took no action, the
complaint alleges, even though he approved cooling measures for barns
housing pigs that TDCJ raises for slaughter. The complaint also alleges that
Livingston took part in the decision not to employ medical staff at the Garza
West Unit during night hours, and that all three supervisory Defendants were
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                                       No. 14-40459
responsible for an alleged lack of adequate training that correctional officers
received.
                                             II.
       Defendants moved to dismiss the § 1983 claim against them on the basis
of qualified immunity.           They argued that as the top three security
administrators of TDCJ, 4 they were not personally responsible for—and did
not personally participate in—any decisions regarding Hinojosa’s housing or
medical needs, and they did not violate clearly established law.
       After hearing argument on the motion, the district court orally denied it
from the bench. In its later-issued written order explaining its reasoning, the
district court held that the complaint alleged facts which, if true, would permit
the inference that the defendants were liable for the alleged harm and would
defeat the qualified immunity defense. However, the district court determined
that further factual development was necessary for it to rule on the defense,
because “[t]here remain significant questions to be answered as to the details
of the TDCJ Defendants’ knowledge, actions, omissions and/or policies in
regards to TDCJ prison operations in times of extreme heat.” Therefore, the
district court deferred ruling on the qualified immunity defense and ordered
discovery “limited to the personal knowledge and personal conduct of each
Defendant as it relates to Albert Hinojosa and the circumstances leading to his
death.” Defendants then initiated this interlocutory appeal.




       4 As detailed in the complaint, at the time of Hinojosa’s death, Brad Livingston was
the executive director of TDCJ, Rick Thaler was the director of TDCJ’s Correctional
Institutions Division, and William Stephens was the deputy director of the Correctional
Institutions Division. The complaint asserts that in their capacities, Livingston, Thaler, and
Stephens exercised administrative authority over all TDCJ employees working in TDCJ
institutions, including those working in the Garza West Unit.
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                                  No. 14-40459
                                       III.
        The parties disagree over whether we have jurisdiction to review the
district court’s order. Under 28 U.S.C. § 1291, we have jurisdiction to review
“final decisions” of the district courts in our circuit. Generally, this class of
decisions “does not include discovery orders.” Backe v. LeBlanc, 691 F.3d 645,
647–48 (5th Cir. 2012). However, the Supreme Court has interpreted § 1291
to include a grant of authority to review a “small class” of collateral orders
traditionally considered non-final. See Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 545–47 (1949). Under this collateral order doctrine, we have
jurisdiction under § 1291 to entertain appeals from decisions that “[1]
conclusively determine the disputed question, [2] resolve an important
issue completely separate from the merits of the action, and [3] [are] effectively
unreviewable on appeal from a final judgment.” Texas v. Caremark, Inc., 584
F.3d 655, 657–58 (5th Cir. 2009) (alterations in original) (quoting Will v.
Hallock, 546 U.S. 345, 349 (2006)). A district court’s order denying qualified
immunity is one such order. Zapata v. Melson, 750 F.3d 481, 484 (5th Cir.
2014); Backe, 691 F.3d at 648. So too is an order deferring the district court’s
qualified immunity ruling and providing for limited discovery if the order fails
to comply with our precedent, because “[o]ne of the most salient benefits of
qualified immunity is protection from pretrial discovery.” Backe, 691 F.3d at
648.     If, however, such an order complies with our precedent, we lack
jurisdiction to review it. Zapata, 750 F.3d at 485; Backe, 691 F.3d at 648.
        Thus, to determine whether we have jurisdiction over this interlocutory
appeal, we must determine whether the district court’s order complied with
our precedent for issuing such orders. “[T]his court has established a careful
procedure under which a district court may defer its qualified immunity ruling
if further factual development is necessary to ascertain the availability of that
defense.” Backe, 691 F.3d at 648. First, the district court must determine “that
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                                 No. 14-40459
the plaintiff’s pleadings assert facts which, if true, would overcome the defense
of qualified immunity.” Id. (quoting Wicks v. Miss. State Emp’t Servs., 41 F.3d
991, 994 (5th Cir. 1995)). “Thus, a plaintiff seeking to overcome qualified
immunity must plead specific facts that both allow the court to draw the
reasonable inference that the defendant is liable for the harm he has alleged
and that defeat a qualified immunity defense with equal specificity.” Id. When
reviewing a complaint that meets this standard, the district court may defer
its qualified immunity ruling and order limited discovery if “the court remains
‘unable to rule on the immunity defense without further clarification of the
facts.’” Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987)).
Such a discovery order must be “narrowly tailored to uncover only those facts
needed to rule on the immunity claim.” Id. (quoting Lion Boulos, 834 F.2d at
507–08). “[W]e may review the order under the collateral order doctrine when
a district court fails to find first that the plaintiff’s complaint overcomes a
defendant’s qualified immunity defense, when the court refuses to rule on a
qualified immunity defense, or when the court’s discovery order exceeds the
requisite ‘narrowly tailored’ scope.” Id. (internal citations omitted); see also
Zapata, 750 F.3d at 485.
                                      IV.
                                       A.
      We first ask whether the complaint pleads facts that, if true, would
permit the inference that Defendants are liable under § 1983 for an Eighth
Amendment violation and would overcome their qualified immunity defense.
We conclude that it does.
                                       i.
      The Eighth Amendment to the United States Constitution prohibits the
infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. This
prohibition, made applicable to the States through the Fourteenth
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                                        No. 14-40459
Amendment, 5 see Robinson v. California, 370 U.S. 660, 666–67 (1962), “does
not mandate comfortable prisons, but neither does it permit inhumane ones.”
Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015) (quoting Farmer v. Brennan,
511 U.S. 825, 832 (1994)). To plead an Eighth Amendment violation based on
the conditions of an inmate’s confinement, a plaintiff must allege conditions
that “pos[e] a substantial risk of serious harm.” Farmer, 511 U.S. at 834. The
plaintiff must also allege that the defendant prison officials were deliberately
indifferent to the inmate’s health or safety. Id. This requires more than an
allegation of mere negligence, but less than an allegation of purpose or
knowledge.      Id. at 835–36.        Rather, a prison official acts with deliberate
indifference when he “knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837.
       Whether a risk is substantial and the threatened harm is serious
represents an objective test; whether prison officials consciously disregarded
the risk represents a subjective one. Ball, 792 F.3d at 592. Furthermore,


       5  In their initial brief, Defendants argue that “[a] prison conditions claim by a prisoner
convicted of a crime is governed by the Eighth and not the Fourteenth Amendment,” and
“[b]ecause the Complaint does not claim that Hinojosa was a pre-trial detainee, the
Fourteenth Amendment claim should have been dismissed.” Defendants misunderstand the
complaint’s invocation of the Fourteenth Amendment. The complaint invokes the Fourteenth
Amendment simply because it is by that provision—and that provision alone—that the
Eighth Amendment’s guarantee applies against the States; the Eighth Amendment does not
apply of its own force to the States. See Robinson, 370 U.S. at 666–67 (holding that the
Fourteenth Amendment makes the Eighth Amendment’s guarantee applicable against the
States and concluding that the state law challenged in that case “inflicts a cruel and unusual
punishment in violation of the Fourteenth Amendment”) (emphasis added); see also McDonald
v. City of Chicago, 561 U.S. 742, 765 (2010) (noting that the Court has “held that incorporated
Bill of Rights protections ‘are all to be enforced against the States under the Fourteenth
Amendment according to the same standards that protect those personal rights against
federal encroachment’”) (emphasis added) (quoting Malloy v. Hogan, 378 U.S. 1, 10 (1964)).
Indeed, contrary to Defendants’ argument, nothing in the complaint or in Plaintiff’s briefs
suggests any intention to bring a pre-trial detention conditions-of-confinement claim.
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                                 No. 14-40459
“[w]hether a prison official had the requisite knowledge of a substantial risk is
a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the risk was
obvious.” Farmer, 511 U.S. at 842 (internal citation omitted). For instance, “if
an Eighth Amendment plaintiff presents evidence showing that a substantial
risk of inmate attacks was longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past, and the circumstances suggest
that the defendant-official being sued had been exposed to information
concerning the risk and thus ‘must have known’ about it, then such evidence
could be sufficient to permit a trier of fact to find that the defendant-official
had actual knowledge of the risk.” Id. at 842–43 (internal quotation marks
omitted).
      We have held that exposing an inmate to extreme cell temperatures can
constitute cruel and unusual punishment. See, e.g., Ball, 792 F.3d at 592;
Gates v. Cook, 376 F.3d 323, 339–40 (5th Cir. 2004); Blackmon v. Garza, 484
F. App’x 866, 869 (5th Cir. 2012); see also Smith v. Sullivan, 553 F.2d 373, 381
(5th Cir. 1977) (noting that the Eighth Amendment is implicated by “extremes
of temperature that are likely to be injurious to inmates’ health”). In Gates,
we affirmed an injunction requiring state prison officials to provide ice water,
fans, and daily showers when the heat index was 90°F or above. 376 F.3d at
339–40.     The evidence in Gates showed that “summer temperatures . . .
average[d] in the nineties with high humidity,” ventilation measures were
inadequate to afford relief from the heat, “[t]he probability of heat-related
illness [was] extreme,” and inmates taking certain medications were especially
susceptible to the heat. Id. at 334. In holding that the district court had
properly identified an Eighth Amendment violation, we noted that an expert
had testified that heat-related deaths were “very likely,” and that a finding of
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                                  No. 14-40459
deliberate indifference was justified “based on the open and obvious nature of
these conditions and the evidence that inmates had complained of symptoms
of heat-related illness.” Id. at 339–40.
      Similarly, in Blackmon, we held that prison officials were not entitled to
judgment as a matter of law where the evidence showed extreme temperatures
in the facility, the plaintiff inmate was particularly susceptible to heat-related
injury because of his age and medication, and the prison officials were aware
of the danger but took arguably inadequate remedial measures. 484 F. App’x
at 870–73. Most recently, in Ball, we held that an injunction requiring heat-
reduction measures was supported by an Eighth Amendment violation where
an expert testified that the plaintiff inmates were particularly susceptible to
the heat because of their medical conditions and treatments, and the evidence
showed that during a monitoring period, the heat index at the facility ranged
from 81.5°F to 107.79°F, with temperatures ranging from 78.26°F to 92.66°F.
792 F.3d at 596. Prison officials had violated the Eighth Amendment even
though they argued that no inmate at the subject facility “ha[d] ever suffered
a heat-related incident” and the plaintiffs’ “medical records show[ed] no signs
of heat-related illness.” Id. at 593. This is because, “[t]o prove unconstitutional
prison conditions, inmates need not show that death or serious injury has
already occurred. They need only show that there is a substantial risk of
serious harm.” Id. (internal quotation marks and citation omitted).
                                        ii.
      Here, the complaint alleges an Eighth Amendment violation.              The
complaint alleges that Defendants subjected Hinojosa to dangerous heat
conditions in conscious disregard of the serious risk that the heat posed for
prisoners who, like Hinojosa, suffered from certain medical conditions, took
certain medications, and had recently been transferred from air-conditioned
jails to non-climate-controlled facilities. As to conditions posing a substantial
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                                        No. 14-40459
risk of serious harm, the complaint alleges that temperatures in the Garza
West Unit routinely exceeded 90°F, and even 100°F, and that Defendants’
policies subjected inmates to these dangerous temperatures. It asserts that
Hinojosa died in his cell in the early morning due to complications following a
heatstroke, and that the temperature had risen above 100°F during the
previous day. The complaint also alleges that inmates are provided “grossly
inadequate amounts of water” to cope with the heat. These allegations plainly
suffice to set forth conditions constituting a substantial risk of serious harm to
inmates with medical conditions and prescriptions like Hinojosa’s. See Ball,
792 F.3d at 594; Gates, 376 F.3d at 339–40; Blackmon, 484 F. App’x at 870–71.
       Moreover, to support its claim that Defendants were aware of the heat
risk and consciously disregarded it, the complaint alleges that from 2007 until
Hinojosa’s death, thirteen other men had died from heat-related causes in
TDCJ prisons under similar circumstances, and TDCJ had previously been
sued by inmates complaining of the heat. 6                 Ten of these thirteen deaths
occurred in 2011, the year before Hinojosa’s. Furthermore, the complaint
alleges that Defendants took no action despite their knowledge of these deaths,
of the extreme temperatures in TDCJ facilities, of the vulnerability of recently
transferred inmates with conditions and medications similar to Hinojosa’s, and
of the importance of timely intake physicals. It also alleges that TDCJ policies
themselves recognized the risk of heat to inmates like Hinojosa, and



       6  The complaint refers to the following heat-condition cases brought by inmates: Ruiz
v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999), rev’d and remanded sub nom. Ruiz v. United
States, 243 F.3d 941 (5th Cir. 2001); Valigura v. Mendoza, 265 F. App’x 232 (5th Cir. 2008);
Blackmon v. Kukua, 758 F. Supp. 2d 398 (S.D. Tex. 2010), rev’d and remanded sub nom.
Blackmon v. Garza, 484 F. App’x 866 (5th Cir. 2012). It also refers to a pending lawsuit,
McCollum v. Livingston, No. 3:12-cv-2037 (N.D. Tex.), which arose from one of the deaths
described in the complaint. In its order, the district court took notice that additional wrongful
death lawsuits similar to the present one have been filed against TDCJ and Defendants, and
it cited one of them, Webb v. Livingston, No. 6:13-cv-711 (E.D. Tex.).
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                                No. 14-40459
Defendants provided training (albeit inadequate training) regarding extreme
temperatures, suggesting their awareness of the risk.
      The complaint specifically asserts that Thaler and Stephens routinely
reviewed reports of heat-related injuries and deaths, discussing them in
meetings with their deputies. According to the complaint, while Thaler and
Stephens maintain that they remind regional directors and wardens to take
heat-safety precautions, Thaler and Stephens in fact do no such thing. The
complaint also asserts that Livingston personally approved cooling measures
to protect the swine that TDCJ raises for slaughter, and Plaintiff argues that
this allegation shows that Livingston was aware of the heat risk to inmates.
The complaint also describes a letter that a state representative sent to
Livingston, expressing concern about the high temperatures and asking that
TDCJ take preventative measures.
      These allegations, if true, would establish that Defendants were “aware
of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and . . . also dr[ew] the inference.” Farmer, 511 U.S. at
837; see also id. at 842–43 (observing that deliberate indifference can be
inferred merely from the obviousness of the risk, such as when prior incidents
are pervasive or well-documented and circumstances suggest that the
defendant was aware of them); cf. also Ball, 792 F.3d at 594–95 (holding that
the defendants were aware of the risk posed by high temperatures even though
they argued no inmate had ever suffered a heat-related incident at the subject
facility). In any event, the open and obvious nature of the dangerously hot
conditions would also support an inference of deliberate indifference. See
Gates, 376 F.3d at 340.
      Defendants argue that the complaint fails to plead deliberate
indifference because it does not allege that they were aware of Hinojosa’s
specific medical history and needs.    However, their lack of knowledge of
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                                 No. 14-40459
Hinojosa’s individual susceptibility to heat-related dangers cannot defeat an
Eighth Amendment claim. The complaint alleges that Defendants were aware
of the risk to recently transferred inmates with conditions and medications like
Hinojosa’s and yet took no action. Prison officials cannot escape liability in a
conditions-of-confinement case like this one by arguing that, while they
allegedly were aware of and consciously disregarded a substantial risk of
serious harm to a discrete class of vulnerable inmates, they were not aware
that the particular inmate involved in the case belonged to that class. See
Farmer, 511 U.S. at 843 (in a case alleging prison conditions that created a risk
of violence, holding that “it does not matter whether the risk comes from a
single source or multiple sources, any more than it matters whether a prisoner
faces an excessive risk of attack for reasons personal to him or because all
prisoners in his situation face such a risk”) (emphasis added); id. at 844
(observing that where prison violence is widespread, “it would obviously be
irrelevant to liability that the officials could not guess beforehand precisely
who would attack whom”); Helling v. McKinney, 509 U.S. 25, 33 (1993) (noting
that the Eighth Amendment is implicated—and § 1983 liability may be
triggered—when prison officials allow inmates to be exposed to infectious
disease, “even though the possible infection might not affect all of those
exposed”). Furthermore, even assuming arguendo that Defendants’ ignorance
of Hinojosa’s medical history could be relevant, the complaint alleges
dangerous conditions that we have previously held to be unconstitutional for
general inmate populations. See Gates, 376 F.3d at 339–40.
      In sum, then, the complaint adequately alleges an Eighth Amendment
violation based on Hinojosa’s conditions of confinement.          Nevertheless,
Defendants contend that the complaint does not properly allege their
responsibility for the asserted constitutional violation because § 1983 does not
contemplate supervisory liability. They argue that they cannot be held liable
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                                 No. 14-40459
for the alleged failures of medical personnel and subordinate corrections
officers because they did not personally participate in those failures.
      The premise of Defendants’ argument is undoubtedly correct. In Monell
v. Department of Social Services, the Supreme Court held that claims against
local governments premised on a theory of respondeat superior liability are not
cognizable under § 1983. 436 U.S. 658, 691–94 (1978). Relying on Monell, “we
have held that supervisory officials may not be found vicariously liable for the
actions of their subordinates under § 1983.” Doe v. Taylor Indep. Sch. Dist., 15
F.3d 443, 452 (5th Cir. 1994) (en banc); see also Thompson v. Steele, 709 F.2d
381, 382 (5th Cir. 1983) (citing Monell for the proposition that “§ 1983 does not
give a cause of action based on the conduct of subordinates,” and observing that
“[p]ersonal involvement is an essential element of a civil rights cause of
action”). Indeed, the Supreme Court squarely held in Ashcroft v. Iqbal that
§ 1983 claims against supervisory officials cannot be premised merely upon
their knowledge of subordinates’ actions. 556 U.S. 662, 677 (2009). Instead,
under § 1983, “each Government official, his or her title notwithstanding, is
only liable for his or her own misconduct.” Id.
      But Defendants misread the complaint. The complaint does not seek to
hold Defendants vicariously liable for the actions of their subordinates.
Rather, it seeks to hold them liable for their own actions in promulgating—and
failing to correct—intake and housing policies that exposed Hinojosa and other
inmates like him to extreme temperatures without adequate remedial
measures. “A supervisory official may be held liable . . . if . . . he implements
unconstitutional policies that causally result in the constitutional injury.”
Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (internal quotation marks
omitted). To the extent that Defendants appear to argue they had no hand in
the formation of the intake and housing policies described in the complaint,
they raise a factual dispute inappropriate for resolution on a motion to dismiss.
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                                 No. 14-40459
The complaint specifically alleges that Defendants promulgated and had the
power to change the policies that allegedly caused Hinojosa’s death. Moreover,
while it is true that the complaint contains allegations regarding the conduct
of Defendants’ subordinates, these allegations seek only to establish direct
liability against those subordinates who were also named as defendants in the
complaint, not vicarious liability against Livingston, Thaler, and Stephens.
                                      iii.
      The complaint alleges facts that, if true, not only would establish
Defendants’ liability for an Eighth Amendment violation, but also would be
sufficient to overcome a qualified immunity defense.       “A public official is
entitled to qualified immunity unless the plaintiff demonstrates that (1) the
defendant violated the plaintiff’s constitutional rights and (2) the defendant’s
actions were objectively unreasonable in light of clearly established law at the
time of the violation.” Porter, 659 F.3d at 445. “A Government official’s
conduct violates clearly established law when, at the time of the challenged
conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is doing violates that
right.’” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Our precedent clearly establishes that
the Eighth Amendment guarantees inmates a right to be free from exposure to
extremely dangerous temperatures without adequate remedial measures. See,
e.g., Gates, 376 F.3d at 339–40; Blackmon, 484 F. App’x at 869; see also Smith,
553 F.2d at 381. In light of this precedent, a prison official acts unreasonably
when he, either directly or through his policy, subjects an inmate to extremely
dangerous temperatures without adequate remedial measures in conscious
disregard of the risk posed by those temperatures.
      Defendants argue, however, that the complaint cannot surmount the
qualified immunity hurdle because there is no clearly established right to an
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                                 No. 14-40459
air-conditioned cell or to around-the-clock medical care. Defendants’ argument
again misreads the complaint and confuses right with remedy. While the
complaint does allege that TDCJ cells are not air-conditioned and that TDCJ
fails to employ medical staff during nighttime hours, it does not claim that the
Eighth Amendment requires such accommodations. Rather, the right that it
asserts is the right to be free from exposure to extremely dangerous
temperatures without adequate remedial measures.              The complaint’s
description of the lack of remedial measures does not purport to be an
exhaustive list of the Eighth Amendment’s basic requirements. It is simply a
description of several ways in which Defendants could have addressed the risk,
but instead chose not to do so. The right that it asserts, however, is the well-
established Eighth Amendment right not to be subjected to extremely
dangerous temperatures without adequate ameliorative measures.
      Defendants also contend that the Supreme Court’s recent decision in
Taylor v. Barkes, 135 S. Ct. 2042 (2015), bolsters their qualified immunity
argument. It does not. In Barkes, survivors of an inmate who committed
suicide brought suit against, inter alia, the commissioner of the Delaware
Department of Corrections and the institution’s warden. Id. at 2043. When
the inmate had arrived at the facility, a nurse administered an intake mental
health evaluation, which revealed only two out of seventeen possible suicide
risk factors. Id. Following established protocol, the nurse gave the inmate a
routine referral to mental health services but did not activate any special
suicide-prevention measures. Id. The inmate was placed alone in a cell and
hanged himself the next day. Id. The plaintiffs claimed that the commissioner
and warden violated the inmate’s Eighth Amendment right “by failing to
supervise and monitor the private contractor that provided the medical
treatment—including the intake screening—at the Institution.”          Id.   The
Supreme Court held that the defendants were entitled to qualified immunity
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                                  No. 14-40459
because no decision of the Court “even discusses suicide screening or
prevention protocols,” the Third Circuit’s own case law did not clearly recognize
such a right, and other circuits had generally “suggested that such a right
did not exist.”   Id. at 2044–45. In sum, the Court found, even if the alleged
shortcomings existed, “no precedent on the books . . . would have made clear to
petitioners that they were overseeing a system that violated the Constitution.”
Id. at 2045.
      Here, by contrast, assuming Hinojosa’s allegations to be true, our
precedent put Defendants on notice that they were “overseeing a system that
violated the Constitution.” Id. Our circuit has made very clear that inmates
have a right, under the Eighth Amendment, not to be subjected to extreme
temperatures without adequate remedial measures, and Defendants have not
alerted us to any contrary authority. See, e.g., Gates, 376 F.3d at 339–40; see
also Smith, 553 F.2d at 381; Blackmon, 484 F. App’x at 869. While we have
not had occasion to give an exhaustive list of acceptable remedial measures,
we have held that the provision of fans, ice water, and daily showers can
suffice. See Gates, 376 F.3d at 339–40; see also Ball, 792 F.3d at 599 (approving
remedies short of full air-conditioning such as the diversion of cool air from
prison staff areas into inmate areas, allowing inmates to access air
conditioning during specified times, and the provision of cool daily showers,
cold ice water, personal ice containers, and individual fans).
      A reasonable prison official in our circuit knows that during times of
extreme heat, he must afford these remedies—or remedies like them—to
satisfactorily address the risk of heat-related illnesses and fatalities. However,
the complaint alleges that TDCJ did not provide enough drinking water or
personal fans during times of extreme heat, and that the water that was
provided was only lukewarm. The complaint also alleges that Defendants
knew that prisoners such as Hinojosa were particularly vulnerable to the heat,
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                                  No. 14-40459
and that through the intake and housing policies that they promulgated, they
failed to ensure that such prisoners received any meaningful relief. If true,
this would defeat a qualified immunity defense, because it would establish that
Defendants subjected Hinojosa to extreme temperatures without adequate
remedial measures, in violation of our circuit’s clearly established law.
                                       B.
        Having determined that the complaint’s factual allegations, if true,
would establish Defendants’ liability for an Eighth Amendment violation and
overcome a qualified immunity defense, we next ask whether further
clarification of the facts was necessary for the district court to rule on the
qualified immunity defense. We easily conclude that it was.
        When reviewing a well-pleaded complaint and a defendant’s motion to
dismiss on the basis of qualified immunity, a district court may defer its
qualified immunity ruling and order limited discovery when “the court remains
‘unable to rule on the immunity defense without further clarification of the
facts.’” Backe, 691 F.3d at 648 (quoting Lion Boulos, 834 F.2d at 507). In other
words, a district court may elect the defer-and-discover approach “when the
defendant’s immunity claim turns at least partially on a factual question” that
must be answered before a ruling can issue. Lion Boulos, 834 F.2d at 507.
        Here, the district court held that it was unable to rule on Defendants’
qualified immunity claim because factual development was needed as to their
“knowledge, actions, omissions and/or policies in regards to TDCJ prison
operations in times of extreme heat.” In particular, the district court concluded
that:


        [I]t is necessary to know when and how the TDCJ Defendants
        learned about specific prisoner deaths, including the death of
        Albert Hinojosa, and/or serious injury related to extreme heat;
        whether the TDCJ Defendants ordered that conditions be

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                                   No. 14-40459
      monitored or a study conducted regarding extreme heat and
      inmate safety; their familiarity with Fifth Circuit case law
      addressing the dangers of heat within the context of the Eighth
      Amendment and whether or not policies were implemented or
      changed in accordance with such direction; whether the TDCJ has
      performed any studies into the costs of reducing extreme
      temperatures within the dorms via more efficient systems,
      engineering modifications, or other facility upgrades; whether the
      TDCJ Defendants personally consulted with UTMB officials in
      regards to the transportation and housing of at-risk inmates
      during the summer months; whether the TDCJ Defendants
      considered that at-risk inmates be maintained in air-conditioned
      facilities when in transport; and whether the TDCJ Defendants
      received copies of notes, memoranda, emails, or other
      correspondence from TDCJ wardens concerning heat-related
      issues at their units and any administrative responses thereto.


The district court considered these factual issues to be “particularly important
when evaluating the second prong of the qualified immunity test—the
reasonableness of the TDCJ Defendants’ actions in light of the clearly
established constitutional right to be free from extreme temperatures.”
      The factual questions of what Defendants knew, when they knew it, and
whether they investigated and considered possible remedial measures, are
undoubtedly necessary to answer before determining whether Defendants
acted reasonably in light of clearly established law. Of course, as detailed
above, Defendants’ knowledge is central to the deliberate indifference element
of Plaintiff’s Eighth Amendment claim. However, their knowledge is also
highly relevant to qualified immunity, because it bears heavily on the
reasonableness of their actions.
      As we recently observed in a similar interlocutory appeal from a district
court’s discovery order, the qualified immunity inquiry requires the district
court to “evaluate whether [the defendants] acted with deliberate indifference
by subjectively disregarding a known risk, and whether [their] actions were

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                                  No. 14-40459
objectively reasonable despite the alleged deliberate indifference.” Webb v.
Livingston, No. 14-40579, 2015 WL 4385287, at *5 (5th Cir. July 17, 2015)
(unpublished) (internal citation omitted) (holding that a district court’s defer-
and-discover order in a similar wrongful death case against Livingston, Thaler,
and Stephens complied with our precedent for issuing such orders, and
dismissing for lack of jurisdiction).    Furthermore, Defendants’ “subjective
knowledge is a question of fact, which this court has recognized is peculiarly
within [their] knowledge and possession.”        Id. (internal quotation marks
omitted); see also Gates, 376 F.3d at 333 (“Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact . . . .”); Schultea
v. Wood, 47 F.3d 1427, 1431 (5th Cir. 1995) (recognizing that the establishment
of qualified immunity “depend[s] on facts peculiarly within the knowledge and
control of the defendant” (quoting Gomez v. Toledo, 446 U.S. 635, 641 (1980)).
      The qualified immunity defense requires the district court to determine
whether Defendants acted reasonably at the time of the alleged constitutional
violation, and “[t]his determination is complicated when, as here, the
deliberate indifference standard must be reconciled with the second prong’s
objective reasonableness standard.” Webb, 2015 WL 4385287, at *6. The
reasonableness analysis must be different from the deliberate-indifference
analysis, because “[o]therwise, a successful claim of qualified immunity in this
context would require defendants to demonstrate that they prevail on the
merits, thus rendering qualified immunity an empty doctrine.” Id. (quoting
Hare v. City of Corinth, 135 F.3d 320, 328 (5th Cir. 1998). “In light of these
complexities, we have observed that ‘[a]dditional facts . . . are particularly
important when evaluating the [reasonableness] prong of the qualified
immunity test.’” Id. (quoting Morgan v. Hubert, 335 F. App’x 466, 473 (5th Cir.
2009).   That holds true in this case.       The district court did not err in


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                                 No. 14-40459
determining that factual development was needed to rule on Defendants’
qualified immunity defense.
                                      C.
      Our foregoing discussion establishes that the district court was
empowered to defer its qualified immunity ruling and issue a discovery order.
However, the breadth of the ordered discovery is critically important.
Qualified immunity is immunity not only from judgment, but also from suit;
“[o]ne of the most salient benefits of qualified immunity is protection from
pretrial discovery.” Backe, 691 F.3d at 648. We therefore must determine
whether the discovery that the district court ordered was “narrowly tailored to
uncover only those facts needed to rule on the immunity claim.” Id. (quoting
Lion Boulos, 834 F.2d at 507–08). While this presents a somewhat close
question, we conclude that the district court’s discovery order was
appropriately tailored.
      The district court ordered discovery “limited to the personal knowledge
and personal conduct of each Defendant as it relates to Albert Hinojosa and
the circumstances leading to his death.” The district court elaborated that:


      Such discovery may include Defendants’ knowledge of extreme
      temperatures at the Garza West Unit, including knowledge of any
      prisoner complaints to prison officials about the temperature in
      the dorms or cells for the months of May through September for
      the years of 2010, 2011, and 2012. Plaintiff may inquire as to each
      Defendant’s personal knowledge, if any, in regards to the effects of
      extreme heat on pre-existing medical conditions of hypertension,
      diabetes, depression, and schizophrenia, whether Defendants are
      familiar with the medications generally prescribed to treat such
      conditions, and whether Defendants have knowledge or training
      concerning medications and extreme heat. Plaintiff may inquire
      as to any policies and procedures in place at the Garza West Unit,
      as well as TDCJ system-wide policies or procedures, adopted or in
      place to address prison operations when temperatures are
      considered to constitute extreme heat.
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                                No. 14-40459


      Defendants contend that this discovery is overbroad because it relates to
a three-year period, encompasses system-wide TDCJ policies and conditions
rather than those only at the Garza West Unit, and covers complaints by
inmates without medical conditions like Hinojosa’s. Defendants also seize on
the discovery order’s observation that factual development was necessary as to
“whether the TDCJ Defendants considered that at-risk inmates be maintained
in air-conditioned facilities when in transport,” apparently interpreting this
line to authorize discovery as to whether TDCJ inmate-transportation vehicles
are equipped with air conditioning. Defendants also dismiss as “irrelevant”
their general knowledge about prison heat, whether they conducted studies or
consulted with UTMB officials, TDCJ policies regarding operations during
extreme temperatures, when and how they learned of other inmate deaths,
their familiarity with our precedent, their receipt of correspondence from
wardens   regarding    heat-related    issues,   and   whether    policies   were
implemented or changed. Finally, Defendants contend that they have already
provided “extensive discovery” in other similar cases, making the district
court’s discovery order unnecessary.
      As a preliminary matter, we do not agree that the district court’s order
authorizes discovery regarding inmate transportation in TDCJ vehicles. The
district court observed that discovery was needed to determine “whether the
TDCJ Defendants personally consulted with UTMB officials in regards to the
transportation and housing of at-risk inmates during the summer months,”
and “whether the TDCJ Defendants considered that at-risk inmates be
maintained in air-conditioned facilities when in transport.”     In making this
observation, the district court appears to have used the words “transportation”
and “transport” to mean the movement of inmates into a transfer facility, such
as the Garza West Unit, and then through the prison system.                   The
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                                  No. 14-40459
transportation of inmates in non-air-conditioned TDCJ vehicles has never been
at issue in this case, and in any event, the district court’s order never discusses
the matter. Moreover, the complaint specifically alleges that inmates are most
vulnerable when moved from air-conditioned county jails into non-climate-
controlled transfer facilities, like the Garza West Unit, because of the
temperature change and lack of opportunity to acclimatize. Viewed alongside
the nature of the complaint’s allegations, Defendants’ strained reading of the
district court’s use of the words “transportation” and “transport” is mistaken.
      We also disagree with Defendants’ assertion that much of the ordered
discovery was “irrelevant.” The complaint sets out an Eighth Amendment
claim by alleging deliberate indifference to dangerous heat conditions in TDCJ
facilities. Assuming that the complaint’s allegations are true, to be entitled to
qualified immunity, Defendants must show either that they were not
deliberately indifferent to the heat risk, or that their actions were reasonable
in light of clearly established law. What Defendants knew about prison heat
and its risks (especially for vulnerable inmates with medical conditions like
Hinojosa’s), when and how Defendants acquired such knowledge, whether
Defendants investigated the risk and explored possible remedial measures,
and whether Defendants adopted policies to respond to the heat risk are
factual issues highly relevant to evaluating the reasonableness of Defendants’
actions. In addition, we reject Defendants’ contention that their provision of
extensive discovery in other similar cases renders superfluous any discovery
in the instant case. If anything, this fact cuts in the other direction, suggesting
that the plaintiff in this case will similarly be able to discover a great deal of
relevant material. Regardless, discovery for one plaintiff in one case is not




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                                     No. 14-40459
superfluous simply because other plaintiffs in other cases have had an
opportunity to conduct it. 7
      Defendants’ strongest argument concerns the discovery order’s breadth
and timeframe, inasmuch as it allows discovery regarding TDCJ system-wide
policies or procedures and Defendants’ knowledge of any inmates’ heat-related
complaints during a three-year period. Hinojosa died in the summer of 2012.
With the exception of two inmate deaths dating back to 2007 and one other
death in 2012, the other alleged inmate deaths all took place during the
summer of 2011. In addition, the complaint focuses its allegations on TDCJ
transfer facilities, like the Garza West Unit, where inmates typically arrive
from air-conditioned county jails. However, the district court’s order permits
discovery not only into Defendants’ knowledge of policies and procedures in
place at the Garza West Unit and other similar transfer facilities, but also
system-wide TDCJ policies and procedures. Furthermore, while the complaint
focuses on Hinojosa’s vulnerability to the heat due to his conditions and
medications, the district court’s order allows discovery regarding Defendants’
knowledge of all inmates’ heat-related complaints, not simply those of
vulnerable inmates like Hinojosa.
      Defendants advance a colorable argument that these discovery items are
broader than necessary, but ultimately we are not persuaded. In a vacuum,
the most relevant time period for discovery would seem to begin with the
summer of 2011, during which ten TDCJ inmates allegedly perished from heat-
related causes. However, we cannot say with any certainty that discovery into
Defendants’ knowledge of inmate complaints dating back to the summer of
2010 would be unnecessary. According to the complaint, by the summer of


      7  Nothing in our opinion should be construed to prevent Defendants from asking the
district court to consolidate discovery proceedings with the discovery proceedings in other
related cases.
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                                  No. 14-40459
2010, two inmates had already died from heat-related causes.               Whether
Defendants knew about inmate complaints during the summer of 2010 would
shed light on the reasonableness of their actions. Likewise, while Defendants’
knowledge of heat-related policies and procedures in place at the Garza West
Unit and similar transfer facilities is more probative than their knowledge of
policies and practices at other TDCJ facilities, we cannot say that discovery as
to the latter is unnecessary. Defendants’ knowledge of any heat-related TDCJ
policy or procedure (or lack thereof) would bear on whether they acted
reasonably in promulgating (or declining to change) the alleged policies for
which the complaint seeks to hold them responsible. The same holds true for
the district court’s authorization to discover Defendants’ knowledge of
complaints by all inmates rather than simply complaints by those inmates with
medical vulnerabilities.   See Gates, 376 F.3d at 340 (observing that prior
complaints by other inmates are probative of deliberate indifference). Both are
relevant to the reasonableness of Defendants’ actions, and we cannot say that
discovery regarding the former—though perhaps less probative than the
latter—is unnecessary.
        To the extent we might have any lingering doubt about the breadth of
the discovery order, we note that the district court was careful to state that
discovery will be “limited to the personal knowledge and personal conduct of
each Defendant as it relates to Albert Hinojosa and the circumstances leading
to his death.” This provides an outer boundary for all of the specific discovery
items that follow, and those items should be interpreted with that boundary in
mind.     If Plaintiff requests discovery that is irrelevant to Defendants’
knowledge and personal conduct regarding Hinojosa and the circumstances
leading to his death, Defendants can seek enforcement of the plain language
in the district court’s order that prohibits such discovery.


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                               No. 14-40459
                                     V.
     Because, as set forth above, the district court’s order complies with our
precedent, we DISMISS this interlocutory appeal for want of jurisdiction. We
express no opinion on how the district court should rule on Defendants’
qualified immunity defense.




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                                 No. 14-40459
JONES, Circuit Judge, dissenting:
      No one doubts the tragedy of a prisoner’s life lost to heat stroke during a
hot Texas summer. The question here, however, is not whether better prison
policies or procedures might theoretically have prevented Hinojosa’s death in
the Garza West transfer unit of the Texas Department of Criminal Justice
(“TDCJ”). As in all cases of qualified immunity, the question is whether the
three top officials of the TDCJ (“Executive Defendants”), whose 111
institutions supervise over 150,000 prisoners at a time, must endure litigation
and potential personal liability in damages for this prisoner’s death because of
some arguably defective “condition of confinement.” See Mullenix v. Luna,
577 U.S. ___, 2015 WL 6829329 (Nov. 9, 2015) (summarily reversing Fifth
Circuit denial of qualified immunity to police officer because his conduct did
not violate clearly established law under the circumstances he confronted). I
would also reverse the district court order denying qualified immunity on the
pleadings.   See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815
(1985) (“Unless the plaintiff’s allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.”) (emphasis added).
      The majority opinion here violates the clearly established law of
qualified immunity by holding that under “clearly established” constitutional
law, these officials may have been deliberately indifferent to the vaguely
specified conditions under which Hinojosa succumbed. This is because there
is no allegation that they directly participated in any way in the management
of this prison unit, and the plaintiff herself makes significant countervailing
allegations about TDCJ policies, training, and procedures designed to address
the risks of high temperatures. If the majority opinion is correct, then the top
TDCJ officials might also be personally liable for any other injury-causing
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                                       No. 14-40459
“condition of confinement”—a salmonella outbreak in a prison unit’s food
service, the crash of a prison transport bus, a mishandled hurricane
evacuation, 1 slippery prison showers, or even heart attacks or prison suicides.
       The implications for suicide prevention would be obvious, except that the
majority opinion is squarely at odds with the Supreme Court’s decision in
Taylor v. Barkes, which held as a matter of law that the top official of the
Delaware prison system and the particular institution’s warden violated no
“clearly established law” by failing to oversee “proper implementation of
adequate suicide prevention protocols.” 135 S. Ct. 2042, 2044 (2015) (per
curiam). In so doing, the Court overruled a Third Circuit decision denying
summary judgment. Statistically, far more prisoner deaths are caused by
suicide than heat stroke, 2 and the Court did not deny that generally, the
prisons are responsible for the protection of inmates. See, e.g., Farmer v.
Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994).                 Yet, the Supreme Court
summarily reversed, holding that no court opinion has placed beyond doubt a
prisoner’s right to the proper implementation of adequate suicide prevention
protocols, much less “identif[ied] any minimum screening procedures or
prevention protocols that facilities must use.” Taylor, 135 S. Ct. at 2044–45.
       By the lights of Taylor, Mullenix, and many other Supreme Court
decisions, the majority opinion is indefensible for two primary reasons. First,



       1 Cf. Spotts v. United States, 613 F.3d 659 (5th Cir. 2010).
       2 Hinojosa’s complaint alleges that between 2007 and 2012, 13 TDCJ prisoners died
of heat stroke (prior to Hinojosa’s own death). During the period from 2001 to 2013, 326
prisoners died in TDCJ custody as a result of suicide—an average of approximately 25 deaths
a year, more than eight times the average number of deaths per year alleged in this case (less
than 3). See Margaret Noonan et al., U.S. Dep’t of Justice, Mortality in Local Jails and State
Prisons,    2000-2013 – Statistical          Tables    25 tbl.25 (2015),       available at
http://www.bjs.gov/content/pub/pdf/mljsp0013st.pdf.

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                                          No. 14-40459
it defines the allegedly “clearly established right” of Hinojosa in an overbroad
and ambiguous way, the antithesis of what qualified immunity stands for.
Qualified immunity is due these officials as a matter of law. Second, it affords
credence to pleadings that are insufficient under Iqbal 3 to raise a question
about these officials’ liability under any circumstances. The pleadings thus
failed to state a claim under Rule 12(b)(6). 4
                                      I. BACKGROUND
        A brief synopsis of the relevant pleadings and the majority’s
characterization of the alleged constitutional violations is important. Hinojosa
was transferred to the Garza West transfer unit, which houses well over 2,000
inmates, in August 2012. He was middle aged and obese and was under
medication for hypertension, diabetes, and schizophrenia. Within two days of
his arrival at this non-air conditioned facility, another prisoner in his dorm
room observed him going into convulsions late at night and called for medical
help.       It took about two hours for “emergency” assistance to arrive, and
Hinojosa was pronounced dead shortly thereafter. No facts are pled about
remediation within the prison unit for heat conditions other than an alleged
gross deficiency of drinking water and personal (not institutional) fans.




        3   Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009).

        4 Additionally, the majority opinion condones abusive discovery that has already
amassed thousands of pages of documents, plus depositions against these defendants,
rendering their ultimate exoneration a hollow victory. This discovery far exceeds the case at
hand, as it covers a lengthy time frame and the entirety of the TDCJ prison system. Qualified
immunity, after all, is “immunity from suit, and extends beyond just a defense to liability to
include all aspects of civil litigation.” Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986);
see also Iqbal, 556 U.S. at 685, 129 S. Ct. at 1953 (“The basic thrust of the qualified-immunity
doctrine is to free officials from the concerns of litigation, including avoidance of disruptive
discovery.”) (internal quotation marks omitted).
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                                 No. 14-40459
      Hinojosa’s lawsuit included as defendants not only the three top officials
of the TDCJ, appellants here, but also the head of the Correctional Managed
Care Program at the University of Texas Medical Branch-Galveston, which is
responsible for medical care of most TDCJ inmates, regional administrators,
and wardens. Relevant to these top officials, the majority opinion culls from
the plaintiff’s pleadings as follows:     TDCJ policies “reflect” the officials’
knowledge that prisoners with medical conditions and treatment like
Hinojosa’s are unusually susceptible to excessive heat.          TDCJ “policies”
acknowledge the importance of acclimating inmates “to reduce the risk of
heatstroke” as they transfer from air conditioned county jails to TDCJ, “but
TDCJ did not have any housing assignment policy for newly arrived inmates
to help them acclimatize [sic].” More precisely put, TDCJ “policies” specify that
(a) newly arrived inmates with heat-sensitive conditions may not work or
engage in recreation in high temperature conditions, and (b) no newly arrived
inmates may labor outdoors until they have had an intake physical exam,
which may not occur for up to ten days.      “[T]hey are nonetheless housed in
high indoor temperatures along with the rest of the inmate population.” These
defendants’ “policies” made no accommodation for newly arrived inmates or
inmates with heat-sensitive medical conditions. These defendants “failed to
ensure that inmates timely received intake physicals, and failed to implement
any other protective procedures.”       Livingston allegedly “took part in the
decision not to employ medical staff at the Garza West Unit during night hours,
and . . . all three supervisory Defendants were responsible for an alleged lack
of adequate training that correctional officers received.”
      The majority omit mentioning many other allegations in the plaintiff’s
complaint directed to proving liability on the part of the medical defendants


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                                     No. 14-40459
and wardens who were situated closer to or at Garza West. These telling
allegations include:
         • Dr. Owen Murray of the UTMB’s Correctional Managed
            Care Program “oversees the medical, mental health and
            dental services provided to prisoners [in] . . . the Garza
            West Unit.” (Pl.’s Compl. at ¶ 13.)
         • “Murray is responsible for ensuring that TDCJ facilities
            serviced by UTMB provide adequate health care to
            prisoners, that prisoners have access to adequate health
            care, that infirmaries at units . . . are adequately staffed
            to handle medical conditions and emergencies that occur,
            and for formulating policies to ensure that prisoners
            receive adequate care, that serious medical needs are not
            treated with deliberate indifference, and that prisoners
            are   not    subjected    to   dangerous    conditions   as   a
            consequence of their health issues and medical needs.”
            (Id. at ¶ 31.)
         • “Murray has not instituted any practice or policy
            concerning safely housing inmates known to be especially
            vulnerable to the heat.” (Id. at ¶ 41.)
         • “As the wardens and regional director, respectively,
            Guterrez and Kennedy are directly responsible for
            training the front-line officers charged with protecting
            prisoners’ lives.” (Id. at ¶ 73.)
         • “[A]fter . . . two men died in 2007, Dr. Murray instituted
            no changes to UTMB’s intake and housing practices, and


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                                  No. 14-40459
              continued to leave vulnerable prisoners at risk of heat
              stroke system-wide.” (Id. at ¶ 78.)
         • “Despite . . . ten deaths in 2011, Dr. Murray and UTMB
              continued to house vulnerable inmates in extremely hot
              temperatures without any protections. And he did this
              knowing that some areas of TDCJ units, including at
              Garza West Unit, have air conditioned spaces available.”
              (Id. at ¶ 89.)


      According to the majority and the plaintiff, this is an Eighth Amendment
“conditions of confinement” case in which liability is based on an objective
standard of constitutionally inhumane prison conditions and a subjective
standard embodying the defendants’ deliberate indifference to those
conditions.    Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015).          In such
circumstances, it is unnecessary to demonstrate that top officials of TDCJ
either personally participated in or knew about Hinojosa’s imprisonment so
long as they knew generally of the risk of high heat to particularly vulnerable
prisoners. Consequently, according to the majority, these defendants are not
being sued “in their supervisory capacity,” but rather for “their own actions in
promulgating—and failing to correct—intake and housing policies that
exposed Hinojosa and other inmates like him to extreme temperatures without
adequate remedial measures.”
      The defendants’ qualified immunity defense is rejected by the majority
because the “right that [the complaint] asserts . . . is the well-established
Eighth Amendment right not to be subjected to extremely dangerous
temperatures without adequate ameliorative measures.” The majority concede
that “[w]hile we have not had occasion to give an exhaustive list of acceptable
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                                      No. 14-40459
remedial measures, we have held that the provision of fans, ice water, and
daily showers can suffice.” See Gates v. Cook, 376 F.3d 323, 339–40 (5th Cir.
2004). 5   The majority conclude that immunity cannot be awarded on the
pleadings because “[a] reasonable prison official in our circuit knows that
during times of extreme heat, he must afford these remedies—or remedies like
them—to satisfactorily address the risk of heat-related illnesses and
fatalities.” The majority finds sufficient to overcome qualified immunity the
allegations that “Defendants knew that prisoners such as Hinojosa were
particularly vulnerable to the heat, and that through the intake and housing
policies that they promulgated, they failed to ensure that such prisoners
received any meaningful relief.”           In short, the Defendants, under these
allegations “subjected Hinojosa to extreme temperatures without adequate
remedial measures, in violation of our circuit’s clearly established law.”
       The majority finally condone a long list of discovery inquiries allegedly
relevant to how much these defendants knew about heat-related issues in
TDCJ.      According to the majority, such discovery (which has already
encompassed thousands of papers and depositions in similar pending cases)
bears on defendants’ knowledge, which is allegedly relevant both to their
subjective states of mind and the objective reasonableness of their actions for
liability and qualified immunity purposes.
                           II. QUALIFIED IMMUNITY
       The panel majority should have proceeded along the same lines as the
Court in Taylor v. Barkes. In Taylor, the Third Circuit approached qualified


       5  See also Ball, 792 F.3d at 600 (approving remedies including diversion of cool air
from prison staff areas, allowing inmates to access air conditioning during specified times,
plus cool daily showers, cold ice water, personal ice containers, and individual fans). Ball,
however, cannot be a basis for rejecting qualified immunity, because that opinion was issued
in 2015, three years and more after the events here in dispute.
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                                  No. 14-40459
immunity by determining first that the plaintiffs had alleged a cognizable
theory of supervisory liability, but the Supreme Court declined to consider that
issue. Taylor, 133 S. Ct. at 2043. Instead, the Court reversed the lower court
because “an incarcerated person’s right to the proper implementation of
adequate suicide prevention protocols” is not a clearly established
constitutional right. Id. at 2044.
      Taylor succinctly expressed the basic standards for qualified immunity:

      “Qualified immunity shields government officials from civil
      damages liability unless the official violated a statutory or
      constitutional right that was clearly established at the time of the
      challenged conduct.” Reichle v. Howards, 132 S. Ct. 2088, 2093
      (2012). “To be clearly established, a right must be sufficiently clear
      that every reasonable official would have understood that what he
      is doing violates that right.” Id. (brackets and internal quotation
      marks omitted). “When properly applied, [qualified immunity]
      protects all but the plainly incompetent or those who knowingly
      violate the law.” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2085 (2011)
      (internal quotation marks omitted). “We do not require a case
      directly on point, but existing precedent must have placed the
      statutory or constitutional question beyond debate.” Id. at 2083.

135 S. Ct. at 2044 (parallel citations omitted). Here, as in Taylor, the Executive
Defendants were neither plainly incompetent nor knowing lawbreakers. The
alleged actions of the Executive Defendants were not objectively unreasonable
in light of the clearly established law at the time of the violation, and they are
entitled to immunity from suit.
      The majority assert the right that was “clearly established” at the time
of Hinojosa’s death is the right to “be free from exposure to extremely
dangerous temperatures without adequate remedial measures.” This “right”
is a tautology.     Under this formulation, what “reasonable but mistaken
judgment” could the Executive Defendants have made about what the law

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                                  No. 14-40459
requires? See al-Kidd, 131 S. Ct. at 2085. If this is the “clearly established
right,” then qualified immunity would cease to exist: if adequate remedial
measures were in place, there would be no constitutional violation; if
reasonable remedial measures fell short of being adequate, there would be
liability. See Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc)
(“Further, the Supreme Court has held that generalizations and abstract
propositions are not capable of clearly establishing the law.”)
      This broad definition of the “clearly established right,” which the
majority opinion repeats three times in its discussion of qualified immunity
and again in purporting to distinguish Taylor, is far more general than the
precise policy deficiencies charged against the Executive Defendants—intake,
housing, and medical policies geared to inmates with heat sensitive medical
conditions. Yet only “clearly established law” that is tailored to the specific
facts confronted by a defendant suffices to deprive him of qualified immunity.
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct 596, 599 (2004) (per curiam)
(“It is important to emphasize that this inquiry ‘must be undertaken in light
of the specific context of the case, not as a broad general proposition.’”) (quoting
Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001)).
      This overbreadth is a significant error in the majority’s analysis. The
right to be free from extreme temperatures without adequate remedial
measures is too generalized to be of any use to the Executive Defendants in
deciding what actions they should or should not take regarding system-wide
policies.   The qualified immunity doctrine is “highly context-sensitive.”
McClendon v. City of Columbia, 305 F.3d 314, 332 n.13 (5th Cir. 2002) (en
banc) (per curiam). And the Supreme Court has repeatedly and frequently
instructed—recently with some exasperation—that courts should not “define
clearly established law at a high level of generality.” al-Kidd, 131 S. Ct. at
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                                     No. 14-40459
2084. Instead, the right must be defined so that it is “beyond debate” that
“every reasonable official would have understood that what he is doing violates
that right.” Id. at 2083 (internal quotation marks omitted) (quoting Anderson
v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)). The Supreme
Court’s guidance underlines the real world implications of the qualified
immunity analysis. General principles are of limited use to prison officials who
must often make difficult policy choices in highly fact-dependent situations.
Because reasonable mistakes are inevitable in these settings, the “clearly
established” requirement protects mistaken judgments.
      Here, it would not have been clear to a reasonable official in the position
of the Executive Defendants that his conduct was unlawful in the situation
confronted. Certainly it would not be “beyond debate” that the failure to
establish specific intake, medical, or housing policies other than those in place
when Hinojosa died would result in an Eighth Amendment violation.
Assuming arguendo the majority’s characterization of the right at issue, all
that has been fairly established by this court’s precedent is that in the face of
high temperatures, some measures must be adopted to provide “relief,” Smith
v. Sullivan, 553 F.2d 373, 381 (5th Cir. 1977), including, in limited
circumstances, extra fans, ice water, and daily showers, 6 Gates, 376 F.3d at
336. But see Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (per curiam)
(“While the temperature in extended lockdown may be uncomfortable, that
alone cannot support a finding that the plaintiff was subjected to cruel and
unusual punishment in violation of the Eighth Amendment.”)




      6 Another case says prison officials should take steps to “address the risks of high
heat.” See Blackmon v. Garza, 484 F. App’x 866, 872 (5th Cir. 2012). But as an unpublished
and non-precedential opinion, Blackmon supplies no clearly established law.
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                                       No. 14-40459
       Further limiting these cases’ applicability to the Executive Defendants’
qualified immunity is that all were confined to particular inmates or particular
sections of prisons.        Gates, for instance, was an injunction limited to
Mississippi’s death row; Smith an injunction placed upon the El Paso County
Jail. This distinction is critical because the Supreme Court has admonished
that the clearly established law should generally be derived from cases that
“squarely govern[]” the facts presented. Brosseau, 543 U.S. at 201, 125 S. Ct.
at 600.      Measures that are necessary or appropriate to address high
temperatures at one prison unit may not be constitutionally required at
another. Compare, at just one analytical level, the needs of medical units, low
security units, and high security units. It makes no sense to extrapolate from
a couple of fact-dependent prison conditions cases the constitutional
requirements for TDCJ’s policies covering its 111 statewide units. Indeed,
even the majority opinion concedes there is no “exhaustive list of acceptable
remedial measures” in prior cases, leaving only “remedies like them” as the
vague constitutional baseline. In other words, not one of the housing and
intake policies advocated in the complaint and the majority opinion are
required or even mentioned in this court’s clearly established law. 7                    It is
disingenuous to conclude that it would have been clear to any reasonable




       7  The plaintiff frequently complains about the lack of air conditioning in Garza West.
(See, e.g., Pl.’s Compl. at ¶ 35 (“Though extreme indoor temperatures at the Garza West Unit
in the summer are well known to TDCJ and UTMB officials, TDCJ’s leadership, including
Kennedy, Stephens, Thaler, and Livingston, has taken no steps to air condition prisoner
housing areas at the Garza West Unit.”)). It is unlikely that such a remedy could be
undertaken by the Executive Defendants without legislative approval due to the cost. In
addition, to the extent this court’s precedents speak about more comprehensive heat
remedies, they reject that air conditioning must be installed to ensure cool prisons. See Ball,
792 F.3d at 599; Blackmon, 484 F. App’x at 872 n.6.

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                                       No. 14-40459
Executive Defendant that his conduct violated an established constitutional
right. 8
       Moreover, the plaintiff’s complaint demonstrates that the Executive
Defendants acted reasonably under these circumstances.                     The complaint
discusses that TDCJ policies recognized the risk of heat stroke. (See Pl.’s
Compl. at ¶¶ 19, 48–50.) The complaint discusses that TDCJ training covers
the risk of heat stroke. (Id. at ¶¶ 71–72.) The complaint avers that TDCJ
policy requires the provision of a certain amount of water per day. (Id. at ¶
60.) The complaint specifies that, under current policies, all prisoners arriving
at Garza West were forbidden to labor outdoors until they had a physical exam,
and those with heat-sensitive conditions could neither labor nor engage in
recreation in high temperature conditions. (Id. at ¶¶ 65, 123.)
       The plaintiff’s mere dissatisfaction with the specificity and breadth of
policy and training does not render the policies objectively unreasonable for
the purposes of qualified immunity. See, e.g., Whitt v. Stephens Cty., 529 F.3d
278, 284 (5th Cir. 2008). The Supreme Court has cautioned against second-
guessing the specificity and coverage of existing policy and training in the
context of § 1983 damages actions because every time a state actor violates a
constitutional right, “a § 1983 plaintiff will be able to point to something the
[state] ‘could have done’ to prevent the unfortunate incident.” Connick v.



       8  And this is “[a]ssuming for the sake of argument that a right can be ‘clearly
established’ by circuit precedent despite disagreement in the courts of appeals.” Barkes, 135
S. Ct. at 2045. Otherwise, any right “clearly established” in our case law must be compared
against the pronouncements of other courts of appeals that have had occasion to consider hot
temperatures in the prisons. See, e.g., Chandler v. Crosby, 379 F.3d 1278, 1297–98 (11th Cir.
2004) (finding no constitutional violation where temperatures ranged from 80 to 95 degrees
(“not unconstitutionally excessive”) and the prison’s remedial measures were a ventilation
system, prison cells not in direct sunlight, prisoners not compelled to wear heavy clothing or
perform laborious tasks, and prisoners with access to running water and a drinking cup).
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                                  No. 14-40459
Thompson, 131 S. Ct. 1350, 1363 (2011) (quoting City of Canton v. Harris, 489
U.S. 378, 392, 109 S. Ct. 1197, 1206 (1989)).
      In fact, as the complaint recognizes, the state did do something to
address potential adverse medical consequences of high temperatures: these
defendants rely on the University of Texas Medical Branch-Galveston in
formulating policies and taking actions relating to the health and medical
safety of prisoners. (Pl.’s Compl. at ¶¶ 13, 15, 31, 143.) Our case law allows
prison officials to defer to medical professionals on a wide range of health
issues. See, e.g., Brauner v. Coody, 793 F.3d 493, 501 (5th Cir. 2015). Because
our cases have sometimes held prison officers liable for not seeking
professional medical attention for prisoners, few things seem more reasonable
than relying on the judgment of a well-respected medical organization to
address health and safety policies concerning the prevention and treatment of
heat stroke. See, e.g., Thompson v. Upshur Cty., 245 F.3d 447, 457–64 (5th Cir.
2001) (reviewing cases and holding that a jail official violated clearly
established law by failing to “arrang[e] for professional medical assistance for
. . . serious medical need”); Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d
752, 756 (5th Cir. 2001) (calling decisions to provide medical treatment a
“classic example of a matter for medical judgment”); see also Lee v. Young, 533
F.3d 505, 511 (7th Cir. 2008) (“[I]n determining the best way to handle an
inmate’s medical needs, prison officials who are not medical professionals are
entitled to rely on the opinions of medical professionals.”).
      It is not clearly established that TDCJ needed to have more specific
policies regarding how to deal with heat-vulnerable prisoners during high heat
conditions. It is certainly reasonable for the Executive Defendants to rely on
subordinates, be they doctors or wardens or prison guards, to take the
necessary steps to address problems that arise on an individual or unit level.
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                                  No. 14-40459
See Johnson v. Johnson, 385 F.3d 503, 526 (5th Cir. 2004) (“Like all prison
officials, these supervisory defendants have a duty to take reasonable
measures to protect inmates. Yet given the size of the operation that they
oversee, they cannot be expected to intervene personally” in every threat that
arises.) (citation omitted). Without more definitive court rulings, it is not
objectively unreasonable when prison policies and training exist to avert heat-
related illness, but they ultimately prove inadequate to address every
conceivable situation.
      Contrary rules would implicate a core function of qualified immunity:
government efficiency and effectiveness. See Harlow v. Fitzgerald, 457 U.S.
800, 814, 102 S. Ct. 2727, 2736 (1982) (describing one of qualified immunity’s
chief concerns as “the diversion of official energy from pressing public issues”).
Imagine if TDCJ’s Executive Director had to personally oversee the amount
and temperature of water afforded to prisoners at all 111 TDCJ facilities or
else face the risk of personal liability. (See Pl.’s Compl. at ¶ 60 (“Throughout
the system . . . the jugs did not contain enough water for each prisoner to drink
enough to protect them from the heat, and are frequently filled with lukewarm
water.”). Such a rule would reduce government functioning to a crawl while
high-level officials micromanaged their subordinates for fear that mistakes
would subject them to “punitive and compensatory” judgments in federal court.
(See id. at ¶¶ 8–10.)
      This leads us back to Taylor v. Barkes, which should control this case,
but which the majority confine to a dismissive paragraph.              Taylor also
originated in tragedy: a jail suicide. 135 S. Ct. at 2043. The plaintiffs sued the
head of the Delaware Department of Corrections and the prison warden for
failing to prevent the suicide by not properly supervising the medical personnel
who administered the suicide screening protocol.            Id. Denying summary
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                                  No. 14-40459
judgment, the Third Circuit found it clearly established that a “particular
vulnerability to suicide” was a serious medical need encompassed within the
Eighth Amendment. Barkes v. First Corr. Med., Inc., 766 F.3d 307, 328–29 (3d
Cir. 2014), rev’d sub nom., Taylor, 135 S. Ct. at 2044. The Third Circuit then
pivoted to conclude that such a finding “place[d] it beyond debate that
appropriate suicide-preventive measures are a required component of the
Constitution’s command that prison administrators provide adequate mental
and physical health care for inmates.”        Id. at 329 (citation and internal
quotation marks omitted).
      A unanimous Supreme Court summarily reversed and granted qualified
immunity as a matter of law. Id. at 2044. The Court held that even under
Third Circuit precedent, a right “to the proper implementation of adequate
suicide prevention protocols” was not clearly established.        Id.   The Court
recognized that the Third Circuit’s cases may establish that where prison
officials “know . . . of the particular vulnerability to suicide of an inmate, they
have an obligation not to act with reckless indifference to that vulnerability.”
Id. at 2045 (internal quotation marks omitted) (quoting Colburn v. Upper
Darby Twp., 838 F.2d 663, 669 (3d Cir. 1988)). But such cases did not clearly
establish “that detention facilities must implement particular procedures to
identify such vulnerable inmates, let alone specify what procedures would
suffice” or “identify any minimum screening procedures or prevention protocols
that facilities must use.” Id. In this light, the Court concluded, “even if the
[jail’s] suicide screening and prevention measures contained the shortcomings
that respondents allege, no precedent on the books . . . would have made clear
to petitioners that they were overseeing a system that violated the Constitution.”
Id. (emphasis added).


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                                  No. 14-40459
      The parallels between Taylor and this case are obvious. Like the Third
Circuit majority, the majority here affirm an Eighth Amendment right of
medically vulnerable inmates not to be subjected to extreme temperatures
without adequate remedial measures.         Like the Third Circuit majority, the
panel majority here approve a claim that these defendants were deliberately
indifferent to the inmate’s serious medical needs because their policies failed
to provide certain “adequate remedial measures” or “measures like those”
mentioned in prior circuit case law. Moreover, as in Taylor, it is alleged that
the Executive Defendants knew their system was inadequate because thirteen
other inmates died from heatstroke in five years before Hinojosa’s death. The
Taylor plaintiffs also explicitly alleged that the Delaware prison officials “were
aware that the suicide rate in the Delaware prisons was above the national
average.” Third Am. Compl. at ¶ 54(i), Barkes v. First Corr. Med., Inc., No. 06-
104-LPS, 2012 WL 2914915 (D. Del. July 17, 2012).
      The majority’s analytical mistake in this decision is the same mistake
made by the Third Circuit. Simply substituting “heat stroke” for “suicide” in
the Supreme Court’s language proves my point. Paraphrasing Taylor,
      [Fifth Circuit] cases may establish that where prison officials
      “know . . . of the particular vulnerability to [heat stroke] of an
      inmate, they have an obligation not to act with reckless
      indifference to that vulnerability.” Taylor, 135 S. Ct. at 2045
      (internal quotation marks omitted). But that does not clearly
      establish “that detention facilities must implement procedures to
      identify such vulnerable inmates, let alone specify what
      procedures would suffice” or “identify any minimum screening
      procedures or prevention protocols that facilities must use.” Id.
      (emphasis added). Thus, “even if [TDCJ’s heat vulnerability and
      heat stroke] screening and prevention measures contained the
      shortcomings that respondents allege, no precedent on the books
      [in August 2012] would have made clear to petitioners that they
      were overseeing a system that violated the Constitution.” Id.

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                                   No. 14-40459


      No prior Fifth Circuit case comes close to giving these Executive
Defendants fair notice that they needed additional system-wide housing,
medical, or intake policies to avoid running afoul of the Constitution and
exposing themselves to personal liability.          This court should grant the
Executive Defendants’ motion to dismiss.
   III. SUFFICIENCY OF PLEADING EXECUTIVE DEFENDANTS’
                         LIABILITY


      Underlying all qualified immunity cases is the question “whether the
plaintiff has asserted a violation of a constitutional right at all.” Siegert v.
Gilley, 500 U.S. 226, 231–32, 111 S. Ct 1789, 1793 (1991). The plaintiff must
assert the constitutional violation in a complaint containing “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)).               A complaint
consisting of “labels and conclusions” or “naked assertion[s] devoid of further
factual enhancement” will not suffice. Id., 129 S. Ct. at 1950 (alteration in
original)   (internal    quotation     marks      omitted)    (quoting     Twombly,
550 U.S. at 555, 557, 127 S. Ct. at 1965–66). Instead the plaintiff must plead
enough facts to “nudge[] [the] claims . . . across the line from conceivable to
plausible.” Id. at 680, 129 S. Ct. at 1951 (internal quotation marks omitted)
(quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1960).
      To assert a violation of the Eighth Amendment for deliberate
indifference to an inmate’s health or safety, the plaintiff’s complaint must
plausibly allege that “prison conditions . . . pose[d] an unreasonable risk of
serious damage” to the plaintiff and that prison officials “acted with deliberate
indifference to the risk posed.” Ball, 792 F.3d at 592 (internal quotation marks
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                                  No. 14-40459
omitted). Deliberate indifference is not mere negligence; the plaintiff must
allege more than that the Executive Defendants should have known about the
risk. See Farmer, 511 U.S. at 835–36, 114 S. Ct. at 1978. Instead, the plaintiff
must plead that the Executive Defendants actually knew about the risk and
failed to respond reasonably in the face of it. See id. at 844–45, 114 S. Ct. at
1982–83; see also Johnson, 385 F.3d at 544 (“Finally—and significantly . . .—
there is no liability if the official responded reasonably to the risk, even if the
harm ultimately was not averted.”) (internal quotation marks omitted); cf.
Taylor, 135 S. Ct. at 2045 (characterizing Third Circuit cases as holding that
where prison officials “know . . . of the particular vulnerability to suicide of an
inmate, they have an obligation not to act with reckless indifference to that
vulnerability.”).
      Despite its length, the plaintiff’s complaint here is rife with bare
conclusional allegations against the Executive Defendants and irrelevant
specific allegations.     The complaint fails to plead their knowledge of
unconstitutional conditions at Garza West and in fact demonstrates that they
acted reasonably to provide “adequate remedial measures.”
   A. Generalized, conclusional allegations
      The Supreme Court has made plain that, “[a]bsent vicarious liability,
each Government official, his or her title notwithstanding, is only liable for his
or her own misconduct.” Iqbal, 556 U.S. at 677, 129 S. Ct. at 1949. When the
plaintiff’s complaint uses blanket terms covering all the defendants, by
lumping them together or calling them collectively “TDCJ,” these allegations
are properly disregarded unless the reference to the Executive Defendants can
be clearly inferred. Accord. Weiland v. Palm Beach Cty. Sheriff’s Office, 792
F.3d 1313, 1323 & n.14 (11th Cir. 2015) (describing this form of “shotgun
pleading” as a “sin” consisting of “asserting multiple claims against multiple
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                                         No. 14-40459
defendants without specifying which of the defendants are responsible for
which acts or omissions”). For instance, the plaintiff alleges that “Defendants
provide grossly inadequate amounts of water to help prisoners survive the
extremely-high temperatures indoors.” (Pl.’s Compl. at ¶ 60.) It is not a
plausible inference that TDCJ Executive Director Brad Livingston, all the way
from his Huntsville office, personally provides grossly inadequate amounts of
water to prisoners in Beeville, Texas. All such allegations should have been
disregarded.
       The complaint against the Executive Defendants depends on three
propositions that they allegedly knew. First, excessive heat can be deadly. 9
Second, excessive heat can be even riskier for those with certain medical
conditions. 10 Third, the Executive Defendants knew that it could be extremely
hot in the units of the Texas prison system, including at Garza West. 11 These



       9 See Pl.’s Compl. at ¶ 18 (“As each of the Defendants have long known and discussed
internally at high-level TDCJ and UTMB leadership meetings well before 2012,
temperatures this elevated cause the human body to shut down.”); id. at ¶ 94 (“Livingston,
Thaler, [and] Stephens . . . knew extreme temperatures can be deadly.”).

       10  See Pl.’s Compl. at ¶ 22 (“It was well known to TDCJ and UTMB leadership,
including the Defendants, that people with certain medical conditions, like diabetes or
hypertension, or who take certain medications, like antipsychotics or diuretics, are much
more vulnerable to extreme temperatures.”); id. at ¶ 37 (“Defendants TDCJ, Livingston,
Thaler, [and] Stephens . . . know many prisoners have medical conditions that make the
extreme heat deadly.”); id. at ¶ 52 (“TDCJ and UTMB officials, including Livingston, Thaler,
[and] Stephens . . . know prisoners in TDCJ custody suffer from these disabilities, and are at
increased risk of heat-related injury and death.”); id. at ¶ 67 (“To put it simply, TDCJ officials,
such as . . . Thaler, Stephens, . . . and Livingston . . . know that TDCJ and UTMB fail to
immediately identify prisoners with heat-sensitive medical conditions and know that this
failure endangers prisoners[.]”).

       11 See Pl.’s Compl. at ¶ 92 (“Livingston, Thaler, [and] Stephens . . . knew indoor
temperatures in TDCJ facilities regularly exceeded 90 degrees during the hot Texas
summers”); id. at ¶ 93 (“Livingston, Thaler, [and] Stephens . . . knew inmate living areas at
the Garza West Unit were not air conditioned and that the apparent temperatures routinely
skyrocketed during the hot Texas summers and routinely exceeded 90 degree indoors.”); id.
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                                    No. 14-40459
bare accusations of knowledge are “not entitled to the assumption of truth.”
See Iqbal, 556 U.S. at 680, 129 S. Ct. at 1951 (rejecting a similar allegation
that defendant “knew of [and] condoned . . . [the] harsh conditions of
confinement”) (internal quotation marks omitted). In a case charging a former
Texas prison director with liability for an inmate-on-inmate murder, this court
long ago rejected similar allegations of knowledge and condonation, declaring
that even when coupled with “conclusory allegations and . . . technical buzz
words” they flunked the minimal pleading standard. See Jacquez v. Procunier,
801 F.2d 789, 792 (5th Cir. 1986) (Reavley, J.). Thus, allegations that there
was a substantial risk to vulnerable inmates from the heat and the Executive
Defendants were aware of it merely track the elements of a deliberate
indifference claim but do not alone suffice to allege an Eighth Amendment
violation. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (“A pleading that offers
. . . a formulaic recitation of the elements of a cause of action will not do.”)
(internal quotation marks omitted).
      The conclusory and threadbare nature of these allegations is to be
expected, of course. The Executive Defendants oversee an entity that houses,
clothes, feeds, and cares for 150,000 people a day across 111 different facilities.
There is no allegation that the Executive Defendants played any direct role in
the management of the Garza West unit, much less in Hinojosa’s intake or
incarceration. See id. at 679, 129 S. Ct. at 1950 (“Determining whether a
complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and
common sense.”). That is the nature of large, complex organizations and the


at ¶ 97 (“Thaler, Stephens, and Livingston are aware that daily temperature readings are
taken at the prison and that these readings are routinely above 90 [degrees] at all times
during the summer months.”).
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                                       No. 14-40459
reason why prisoner lawsuits are almost always directed at a unit’s warden or
individual guards, not the TDCJ Executive Director and his immediate
subordinates. Because the Executive Defendants do not bear vicarious liability
for the actions or inaction of subordinates, it is more challenging for a plaintiff
plausibly to allege facts showing these defendants’ deliberate indifference.
       Consequently, this court has uniformly affirmed dismissal or otherwise
rejected personal liability for high-ranking prison officials when knowledge is
based only on system-wide problems. In addition to Jacquez, this court, in
Walker v. Livingston, rejected a theory of Livingston’s liability for an inmate’s
murder based on knowledge and condonation of systemic deficiencies. We
concluded that there were no allegations of “any facts or any sort of knowledge
on the part of these defendants that would suggest any reason to believe there
was any likelihood of actual subjective awareness on their respective parts of
the specific risk to [the plaintiff].” 381 F. App’x 477, 480 (5th Cir. 2010); see
also Lott v. Edenfield, 542 F. App’x 311, 315 (5th Cir. 2013); Hinojosa v.
Johnson, 277 F. App’x 370, 379 (5th Cir. 2008). In sum, allegations that the
Executive Defendants knew generally of risks in the prison system from high
temperatures do not make it plausible they were deliberately indifferent to the
unconstitutional conditions in Garza West. 12
   B. Specific Allegations
       To shore up otherwise insufficient general allegations, the complaint
relies on several facts designed to allow an inference of the Executive
Defendants’ deliberate indifference. First, thirteen other TDCJ prisoners died
from heat stroke between 2007 and 2012. Second, several lawsuits have been


       12This court’s injunctive cases relating to prison heat conditions involved, unlike this
case, executive defendants’ personal knowledge of the adverse conditions and dangers to
particular prisoners. See, e.g., Ball, 795 F.3d at 594–95; Gates, 376 F.3d at 335.
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                                 No. 14-40459
pursued against TDCJ for alleged heat-related injuries. Third, TDCJ policies
recognize the risk of heat stroke. Fourth, pigs receive more air conditioning
than prisoners. Fifth, a Texas state representative sent a letter to TDCJ in
2011 expressing concern about the high temperatures and asking that TDCJ
take preventative measures. Finally, as the majority opinion asserts, the “open
and obvious nature of the dangerously hot conditions would also support an
inference of deliberate indifference.”
      Arguably the most substantial factual allegation is that the Executive
Defendants knew that thirteen other prisoners with various medical conditions
died from heat stroke between 2007 and 2012. According to the complaint,
these deaths were “regularly discussed” at meetings attended by Thaler and
Stephens (but evidently not Livingston). Again, the complaint pleads little
more than that the Executive Defendants “knew” a fact, instead of pleading
how they knew and the significance of that knowledge. See Jacquez, 801 F.2d
at 792 (dismissing a complaint against Texas prison director where plaintiff
“omit[ted] any explanation of how or in what way the defendants knew” of an
imminent attack against one inmate) (internal quotation marks omitted). That
the deaths were “regularly discussed” at high-level meetings is nothing if not
vague about the nature or extent of the discussion. See Bosarge v. Miss. Bureau
of Narcotics, 796 F.3d 435, 443 (5th Cir. 2015) (“[S]ome allegations, while not
stating ultimate legal conclusions, are nevertheless so threadbare or
speculative that they fail to cross the line between the conclusory and the
factual.”) (alteration in original) (internal quotation marks omitted) (quoting
Peñalbert–Rosa v. Fortuño–Burset, 631 F.3d 592, 595 (1st Cir. 2011)).
      Even accepting that the Executive Defendants were aware of these
deaths, this allegation lacks the context necessary to evaluate it. In a prison
system housing over 150,000 inmates at any given time, it is hardly plausible
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that thirteen deaths over six years from a single cause raise awareness of a
substantial risk to the inmate population. 13 While we must view well-pleaded
facts in the light most favorable to the plaintiff, this does not discharge the
plaintiff’s burden to provide the factual information and context necessary to
evaluate his complaint. See, e.g., Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d
63, 70 (2d Cir. 2015); McTigue v. City of Chi., 60 F.3d 381, 383 (7th Cir. 1995)
(statistics without context are “insufficient to satisfy even the loose
requirements of notice pleading”); cf. Hazelwood Sch. Dist. v. United States,
433 U.S. 299, 312, 97 S. Ct. 2736, 2744 (1977) (“Statistics . . . come in infinite
variety . . . . Their usefulness depends on all of the surrounding facts and
circumstances.”) (brackets omitted) (quoting Int’l Bhd. of Teamsters v. United
States, 431 U.S. 324, 340, 97 S. Ct. 1843, 1856–57 (1974)).
       Relatedly, the complaint alleges that it is even more plausible that the
Executive Defendants were deliberately indifferent to the danger to Hinojosa
because he shared some medical characteristics with prisoners who had
already died of heat stroke. But the story here is mixed. The complaint alleges
that only four of the 14 decedents (including Hinojosa) were hypertensive and




       13 Statistics publicly available from the Justice Department indicate that between
2007 and 2012, almost 2,600 prisoners died while in TDCJ custody. Including Hinojosa’s
death, this means that 0.5% of Texas prisoner deaths during this time period resulted from
heat stroke. See Noonan et al., supra note 2, at 25 tbl.25. As noted above, during the period
from 2001 to 2013, 326 prisoners died in TDCJ custody as a result of suicide and 54 as a
result of homicide—an average of approximately 25 and 4 deaths a year, respectively, more
than the average number of deaths per year alleged in this case (less than 3). Yet, our
precedents have emphasized that both suicide and violence are part of prison life. See
Domino, 239 F.3d at 756 (suicide); Newton v. Black, 133 F.3d 301, 307 (5th Cir. 1998)
(violence). Presumably, this court would not allow a plaintiff to plead that the Executive
Defendants were deliberately indifferent to a personal threat to them of homicide or suicide
based solely on these comparatively more common occurrences.

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                                     No. 14-40459
that three of the 14 were diabetic. 14 Ten of the 14 (including Hinojosa) were
prescribed a psychotropic drug and three of the 14 (not including Hinojosa)
were prescribed a diuretic. The ages of those who died ranged from 36 to 62,
but Hinojosa was among the youngest at 44. The places of death vary, too,
including the Coffield Unit and Mitchell Units in Tennessee Colony (300 miles
away from Garza West), several TDCJ locations in Huntsville (over 250 miles
away), the Hodge Unit in Rusk (over 300 miles away), the Hutchins State Jail
in Dallas (over 300 miles away), and the Connally Unit in Kenedy (30 miles
away). In short, no clear picture emerges from the profiles of the men who had
already died. Consequently, it is hardly plausible to draw the inference of the
Executive Defendants’ deliberate indifference to a prisoner in Hinojosa’s
position at Garza West.
      The fact that TDCJ had been sued previously, and generally
unsuccessfully, by inmates complaining of extreme temperatures does not
create plausible inferences against these defendants.             We have held in a
similar context that the assertions in pleadings are “not . . . particularly strong
evidence” to show defendants’ knowledge. Ball, 792 F.3d at 595. Furthermore,
the cases the plaintiff discusses in the complaint are all distinguishable. In
Valigura, a lawsuit involving Garza East, this court indeed said that
“temperatures into the nineties and hundreds are allegations that are
sufficiently serious to” violate the Eighth Amendment. Valigura v. Mendoza,
265 F. App’x 232, 236 (5th Cir. 2008) (per curiam). A jury, however, apparently
disagreed that those conditions existed at Garza East and rendered a complete


      14It has been estimated that during a recent period under study approximately 19.2%
and 4.2% of the male population of the Texas prison system are afflicted with hypertension
and diabetes, respectively. See Amy J. Harzke et al., Prevalence of Chronic Medical
Conditions Among Inmates in the Texas Prison System, 87 J. Urb. Health 486, 491 tbl.1
(2010).
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defense verdict after a two-day trial.           See Jury Verdict at 1, Valigura v.
Mendoza, No. 2:05-CV-513 (S.D. Tex. Aug. 19, 2008). Livingston himself was
dismissed as a defendant in Blackmon v. Kukua because the district court
found he had no knowledge of the extreme temperatures that were complained
of. 758 F. Supp. 2d 398, 411 (S.D. Tex. 2010). In Ruiz, a decision reversed by
this court, there is only a passing mention of expert testimony that heat was a
danger. Ruiz v. Johnson, 37 F. Supp. 2d 855, 904 (S.D. Tex. 1999), rev’d and
remanded sub nom., Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001).
       The remaining factual allegations fail to nudge this complaint toward
plausibility. The fact that TDCJ policies recognized the risk of heat stroke does
not mean that the Executive Defendants were deliberately indifferent to heat
levels in the prisons. Cooling measures approved for TDCJ’s swine herd add a
melodramatic flair but are irrelevant to human inmates’ conditions of
confinement.     And a letter from a single state representative “expressing
concern” about high temperatures does not lead to an inference of knowledge,
either. The complaint quotes from the letter that temperatures inside prison
cells “do not fall below 100 degrees at night,” but his charge is flatly
contradicted by the plaintiff’s own pleadings. 15 A letter containing dubious
facts and otherwise just “expressing . . . concern” over prison conditions is too
weak to support the proposition that unconstitutional conditions were such a
pervasive problem that the Executive Defendants had actual notice of the
substantial risk to Hinojosa.
       Finally, the majority, perhaps recognizing the complaint’s deficiencies,
throw their hands up in the air: “In any event, the open and obvious nature of



       15See Pl.’s Compl. at ¶ 139 (“Though it was late at night when Hinojosa suffered the
heat stroke, the indoor heat index was still 92 degrees.”).
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                                No. 14-40459
the dangerously hot conditions would also support an inference of deliberate
indifference.” This is ordinarily the language of negligence, not deliberate
indifference.   A cognizable Eighth Amendment claim arises only if the
Executive Defendants acted unreasonably in the face of “open and obvious”
conditions. Cf. Farmer, 511 U.S. at 843–44, 114 S. Ct. at 1982–83. And
reasonable measures, even if ultimately inadequate to prevent the injury, do
not support a finding of deliberate indifference. See Johnson, 385 F.3d at 526.
As I explained in the discussion of qualified immunity, the plaintiff’s own
pleadings acknowledge that reasonable measures had been taken to prevent
heat-related injuries: prisoners at Garza West could not perform outdoor labor
before they had intake physicals; prisoners vulnerable to heat could not labor
outdoors or engage in recreation before they had intake physicals;
management of prison health measures was delegated to the professional
medical oversight of the UTMB-Galveston; and extra water (though allegedly
in inadequate quantities) was prescribed during hot conditions.
      When a court evaluates the legal sufficiency of a complaint, it reviews
the allegations holistically, as alleged facts are all judicial admissions. See
Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 550
(5th Cir. 2009). The facts pled here should preclude a deliberate indifference
claim against the Executive Defendants because the complaint includes
reasonable policy measures to avert the very injury suffered by Hinojosa. See
Brauner, 793 F.3d at 499, 502 (holding there was no deliberate indifference on
the part of prison officials where the plaintiff’s own pleadings were “replete
with examples of attentive and varied treatment from his physicians” and
“supervisory diligence” on the part of the assistant warden).
      A final irony proves the injustice of footing this claim on broad
allegations about the Executive Defendants’ (a) knowledge of “open and
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                                  No. 14-40459
obvious” dangers from excessive heat in the prisons and (b) failure to
implement more policies and training. The majority is allowing potential
liability on a more lenient basis than would be required for the actual
treatment Hinojosa received at Garza West.       In an inmate suicide case, this
court granted qualified immunity to the treating physician while carefully
noting the critical difference between medical malpractice and Eighth
Amendment deliberate indifference:
             Deliberate indifference is an extremely high standard to
      meet. It is indisputable that an incorrect diagnosis by prison
      medical personnel does not suffice to state a claim for deliberate
      indifference. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
      1985). Rather, the plaintiff must show that the officials “refused
      to treat him, ignored his complaints, intentionally treated him
      incorrectly, or engaged in any similar conduct that would clearly
      evince a wanton disregard for any serious medical needs.” Id.
      Furthermore, the decision whether to provide additional
      treatment “is a classic example of a matter for medical judgment.”
      Estelle [v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 293 (1976).]

Domino, 239 F.3d at 756.
       How can it be that the standards for imposing liability on the Executive
Defendants have become, in the majority’s eyes, easier to meet than those for
imposing liability on the medical staff or duty guards? Especially after Iqbal,
the plaintiff has not provided the careful factual allegations to meet the burden
of pleading, with plausibility, that three of the highest-ranking officials in the
Texas prison system were deliberately indifferent to Hinojosa’s vulnerability
to heat in the conditions he faced at Garza West.
      I dissent.




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