     Case: 14-30067         Document: 00513108060           Page: 1     Date Filed: 07/08/2015




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

                                                                                        FILED
                                         No. 14-30067                                July 8, 2015
                                                                                   Lyle W. Cayce
ELZIE BALL; NATHANIEL CODE; JAMES MAGEE,                                                Clerk


                                              Plaintiffs - Appellees Cross-Appellants

v.

JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS; BURL CAIN, WARDEN, LOUISIANA STATE
PENITENTIARY; ANGELA NORWOOD, Warden of Death Row;
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,

                                              Defendants - Appellants Cross-Appellees



                    Appeals from the United States District Court
                        for the Middle District of Louisiana


Before REAVLEY, JONES and ELROD, Circuit Judges.
EDITH H. JONES, Circuit Judge:
       In 2006, Louisiana built a new state-of-the-art prison facility to house
death-row inmates. The cells in that facility, located in Angola, Louisiana, lack
air conditioning. Three inmates sued the Louisiana Department of Corrections
(the “State”) and various prison officials in their official capacities, 1 claiming


       1  The officials include James M. LeBlanc, Secretary of the Louisiana Department of
Public Safety and Corrections; Nathan Burl Cain, Warden of the Louisiana State
Penitentiary in Angola; and Angela Norwood, Assistant Warden in charge of death row. We
refer to all appellants collectively as “the State” because suit against officials in their official
capacity only is essentially against the State of Louisiana.
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                                       No. 14-30067
that the heat they endure during the summer months violates the Eighth
Amendment because of their pre-existing medical problems. They also assert
that the failure to provide air conditioning violates the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the Rehabilitation Act (“RA”),
29 U.S.C. § 794. After a bench trial, the district court sustained the prisoners’
Eighth Amendment claims, rejected their disability claims, and issued an
injunction effectively ordering the Defendants to install air conditioning
throughout death row.
       Although the trial court’s findings of deliberate indifference by prison
officials to these particular inmates’ serious heat-related vulnerability suffice
to support a constitutional violation, the scope of its injunctive relief exceeds
our prior precedent, Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004), and the
Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626. Despite an oversight
concerning applicable law, the court did not err in rejecting the prisoners’
disability claims.      We affirm in part, but vacate and remand the court’s
injunction for further consideration. 2
                                    BACKGROUND
       Angola’s 25,000 square-foot death-row facility 3 consists of a pod
surrounded by four housing wings. Inside the pod are administrative offices,
visitation rooms, a medical and dental clinic, a control center, and an execution
chamber. Within each of the four housing wings, two tiers of cells sit back-to-
back. Each tier is lettered A through H. None of the housing tiers are air
conditioned, but the rest of the facility is. To alleviate the summer heat,
windows (which can be opened) line the exterior wall of each housing tier. Next


       2Our issuance of this ruling renders moot the Plaintiffs’ request that we lift the stay
pending appeal.

       3The death row unit is one of several buildings collectively known as the “Louisiana
State Penitentiary” or “Angola.” Only the death-row facility is implicated here, however.
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                                      No. 14-30067
to the windows are 30-inch fans, which serve two adjoining cells. Inside each
cell is a six-by-eight-inch vent that draws air into the cell from the window
across the tier and vents outside.
       Although death-row inmates spend twenty-three hours a day in their
cells, in-cell sinks provide unlimited access to potable water. Inmates also
enjoy access to ice. Each housing tier has an ice chest, which the Angola staff
maintains. Inmates can only access the chest themselves during the one hour
a day they are allowed to walk the tiers. The rest of the time inmates depend
on guards or other inmates for ice. 4 The uncontroverted evidence shows that
the ice chests run out from time to time, either because the lone ice machine
cannot generate enough ice or it breaks.
       The three plaintiffs here, Elzie Ball, Nathaniel Code, and James Magee,
are long-time residents of Angola’s death-row facility. Magee lives on tier A,
while Ball and Code live on tier H. Each suffers from various conditions: all
three prisoners have hypertension; Ball has diabetes and is obese; Code is also
obese and has hepatitis; and Magee is depressed and has high cholesterol.
They take a variety of medications to control their ailments. According to the
inmates, the extreme heat, not ameliorated by air conditioning, exacerbates
their ailments, causing dizziness, headaches, and cramps.
       Each inmate filed administrative complaints explaining that the heat
was exacerbating his conditions and requesting air conditioning.                       The
Defendants denied their requests.            Internal appeals of the rulings were
unsuccessful. Consequently, in June 2013, the inmates sued the Louisiana
Department of Corrections and prison officials asserting claims under the



       4Inmates can distribute ice to other inmates during the one hour they are allowed to
walk the tiers. If, however, those inmates spend their free hour in recreation or showering,
then the other inmates may not receive ice.

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                                       No. 14-30067
Eighth Amendment’s ban on cruel and unusual punishment and violations of
the ADA and RA. As relief, the prisoners sought an injunction requiring the
state to keep the heat index at or below 88º F.
       A month later, the district court appointed United States Risk
Management (“USRM”) to monitor the temperature at the facility. During the
monitoring period, July 15 to August 5, the temperature on tiers A and H
ranged from 78.26º to 92.66º F. 5 Meanwhile, the heat index ranged from 81.5º
to 107.79º F. On five separate days the heat index on tier A surpassed 100º F.
On tier H, the heat index surpassed 100º F on seven days.
       After the data collection period, the district court held a three-day bench
trial. Experts testified about the Plaintiffs’ medical conditions, the conditions
on death row, the design and construction of the facility, and the effectiveness
of current practices and procedures. The judge personally toured the facility
to observe the conditions first-hand. Several months later, the district court
issued a 100-page ruling that concluded the conditions on death row are cruel
and unusual because of extreme heat during parts of the year. The court
denied the prisoners’ ADA and RA claims because they are not disabled. Based
on the constitutional violation, the court issued a permanent injunction,
requiring the state to develop a plan to keep the heat index at or below 88º F.
Effectively, the district court ordered Louisiana to install air conditioning.
Both sides now appeal.




       5 USRM monitored the temperature on all the tiers. But because the Plaintiffs only
reside on tiers A and H, and because this is not a class-action, only readings from those tiers
are relevant to this appeal.
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                                  No. 14-30067
                                 DISCUSSION
      The parties present four issues. The Defendants assert that the district
court made several erroneous evidentiary rulings, wrongly found a
constitutional violation, and issued an overbroad injunction contrary to the
PLRA, 18 U.S.C. § 3626, and Gates v. Cook, 376 F.3d 323 (5th Cir. 2004). The
inmates’ cross-appeal contends that the district court used a superseded
definition to determine whether they are disabled under the ADA and RA. We
review the liability issues first, then the scope of the injunction.
                                      I. Evidence
      The State’s evidentiary objections are easily resolved. It contends that
the heat index, on which the district court based its ruling, is inherently
unreliable and inappropriate in prison settings. It also contends that the court
should not have taken judicial notice of other facts without providing the State
an opportunity to respond. The objections are meritless.
      We review evidentiary rulings for abuse of discretion. Battle ex rel.
Battle v. Mem’l Hosp. at Gulfport, 228 F.3d 544, 550 (5th Cir. 2000) (citing Jon-
T Chemicals, Inc. v. Freeport Chem. Co., 704 F.2d 1412, 1417 (5th Cir. 1983)).
Even if the court abused its discretion, this court will presume the error is
harmless. See FED. R. CIV. P. 61; Bocanegra v. Vicmar Servs., Inc., 320 F.3d
581, 584 (5th Cir. 2003). The party asserting the error has the burden of
proving that the error was prejudicial. See Dietz v. Consol. Oil & Gas, Inc.,
643 F.2d 1088, 1093 (5th Cir. 1981) (quoting Liner v. J.B. Talley and Co., Inc.
618 F.2d 327, 329 (5th Cir. 1980)).
      The district court did not abuse its discretion by admitting evidence of or
relying on the heat index. The thrust of the State’s argument is that because
heat index is a derived number, courts cannot use it as a basis for ruling.
Although the State’s expert meteorologist, Jay Grymes, testified that the heat
index is “not a real number,” the rest of his testimony bolsters the use of the
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                                  No. 14-30067
heat index. For example, Grymes testified that the heat index is a “guideline
number” and that he “provide[s] heat index as a guide to [his] viewers to make
better decisions.” Dr. Susi Vassallo, the Plaintiffs’ expert, testified that peer
reviewed scientific articles measure the correlation between heat index and
morbidity and mortality. This court also has relied on the heat index before.
See Gates, 376 F.3d at 339 (upholding increased access to ice, water, and
showers when the heat index exceeds 90º F.). In the absence of further proof,
the court did not abuse its discretion.
      The State’s complaint about the court’s taking judicial notice of publicly
available evidence is similarly weak.         The court cited an article from the
National Weather Service’s website called Heat: A Major Killer and referred to
temperature readings from the Baton Rouge Regional Airport.
      Because the district court did not warn the State that it would be taking
judicial notice of these materials, the State complains it was “deprived of the
opportunity to request an opportunity to be heard regarding the data.” Rule
201, however, expressly contemplates courts’ taking judicial notice without
prior warning. See FED. R. EVID. 201(e) (“If the court takes judicial notice
before notifying a party, the party, on request, is still entitled to be heard.”
(emphasis added)); 21B KENNETH W. GRAHAM, JR., FED. PRAC. & PROC. EVID.
§ 5109 (2d ed.) (Rule 201 does “not require any notice to the parties that judicial
notice [is] about to be taken,” and “a party might get no advance notice at all”).
The State, moreover, did not avail itself of the Rule’s provision requiring the
court to provide an opportunity to be heard. See FED. R. EVID. 201(e); See also
FED. R. CIV. P. 59(a)(2) (“After a nonjury trial, the court may, on motion for a
new trial, open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or make new ones,
and direct the entry of a new judgment.”). In any event, the State’s explanation
of prejudice is vague, cursory and unpersuasive. It makes no showing that the
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                                     No. 14-30067
district court’s consideration of the National Weather Service article or Baton
Rouge temperature readings altered the outcome. See Dietz, 643 F.2d at 1093.
The judicial notice objections fail as well as the heat index objection.
                               II.    Eighth Amendment
      Turning to the Plaintiffs’ Eighth Amendment claims, the Constitution
“ ‘does not mandate comfortable prisons,’ but neither does it permit inhumane
ones.” Farmer v. Brennan. 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994)
(quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981)).
Extreme cell temperatures, therefore, can violate the Eighth Amendment. To
be tantamount to the infliction of cruel and unusual punishment, prison
conditions must pose “an unreasonable risk of serious damage” to a prisoner’s
health – an objective test – and prison officials must have acted with deliberate
indifference to the risk posed—a subjective test.             Helling v. McKinney,
509 U.S. 25, 33-35, 113 S. Ct. 2475, 2481-82 (1993) (holding exposure to an
“unreasonable risk of damage to [a plaintiff’s] health” actionable under the
Eighth Amendment); see also Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct.
2321, 2327 (1991) (postulating that “a low cell temperature at night combined
with a failure to issue blankets” can violate the Eighth Amendment); Gates,
376 F.3d at 339. Without the requisite proof of both subjective and objective
components     of    an    Eighth    Amendment      violation,    however,    merely
“uncomfortable” heat in a prisoner’s cell does not reflect “a basic human need
that the prison has failed to meet” and is not constitutionally suspect. Woods
v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995).
      The predicate findings of a substantial risk of serious harm and officials’
deliberate indifference to the risk are factual findings reviewed for clear error.
Gates, 376 F.3d at 333; Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010)
(citing Farmer, 511 U.S. at 842, 114 S. Ct. at 1981). “ ‘A finding is clearly
erroneous if it is without substantial evidence to support it, the court
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                                 No. 14-30067
misinterpreted the effect of the evidence, or this court is convinced that the
findings are against the preponderance of credible testimony.’ ” Petrohawk
Props., L.P. v. Chesapeake La., L .P., 689 F.3d 380, 388 (5th Cir. 2012) (quoting
French v. Allstate Indem. Co., 637 F.3d 571, 577 (5th Cir. 2011)). This court
reviews de novo whether the facts so found violate the Eighth Amendment.
Gates, 376 F.3d. at 333.
      For various reasons, the State asserts that the Plaintiffs are not at
substantial risk of serious harm and its officials were not deliberately
indifferent to this risk. Further, the State contends that, because it provides
the remedies this court mandated in Gates, there can be no Eighth Amendment
violation as a matter of law. We reject these challenges to the trial court’s
findings.
      Based mainly on Dr. Vassallo’s testimony, the district court found that
the heat puts these plaintiffs at substantial risk of serious harm. According to
Dr. Vassallo, the cardiovascular system is critical for maintaining normal body
temperature. Dr. Vassallo testified that both hypertension and diabetes can
adversely affect this critical system. “The heart has to be able to pump very
hard to meet the demands of heat.” Hypertension generally can decrease “the
ability of the blood vessels to open and close.” As a result, those vessels are
“not as compliant as they should be,” “they can’t open like they should and have
to in response to heat,” and blood therefore cannot circulate to cool the body.
Therefore, people with hypertension generally can have a hard time controlling
their body temperature.       The same is true for people with diabetes.
Cardiovascular disease, which can result from diabetes, can harden the
arteries and blood vessels, thus inhibiting circulation. As a result, diabetics
can lose ability to circulate blood properly and thus the ability to maintain
normal body temperature.


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                                  No. 14-30067
      The treatments for hypertension can further inhibit these prisoners’
ability to regulate body temperature. Specifically, beta blockers, which help
control blood pressure, can compound the effects hypertension has on the
cardiovascular system.     Beta blockers prevent blood vessels from dilating
properly while at the same time “decreas[ing] the heart’s ability to pump as
hard and to meet the requirements of heat or exercise.” Likewise, diuretics
decrease the total amount of water and salt in the body, resulting in less fluid
around which the heart can contract.        According to Dr. Vassallo, without
sufficient fluid to contract, the heart is unable to meet the increased demands
heat places on the cardiovascular system. Therefore, even if prisoners receive
proper care for their ailments, they may be at increased risk of heat stroke.
This evidence of the Plaintiffs’ heightened vulnerability to high temperatures,
combined with the USRM temperature data showing the high temperatures
on tiers A and H, led the court to find that the Plaintiffs are at substantial risk
of serious harm.
      The State argues that the totality of the record evidence refutes
Dr. Vassallo’s opinion. Specifically, the district court discounted the State’s
arguments that no death-row prisoner has ever suffered a heat-related
incident; these prisoners’ medical records show no signs of heat-related illness;
the prisoners’ poor dietary choices and failure to exercise caused their health
problems; and the prisoners’ suffer high blood pressure all year, not just in the
summer months. Thus, the State contends, the prisoners do not suffer an
unreasonable risk of serious heat-related injury at all.
       These facts fail to show that the district court clearly erred. First, that
no one at Angola, including these plaintiffs, has ever had a heat-related
incident and that these prisoner’s medical records do not show signs of heat-
related illness are insufficient. To prove unconstitutional prison conditions,
inmates need not show that death or serious injury has already occurred. See
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                                      No. 14-30067
Helling, 509 U.S. at 33, 113 S. Ct. at 2481 (“That the Eighth Amendment
protects against future harm to inmates is not a novel proposition.”). They
need only show that there is a “substantial risk of serious harm.” Gates,
376 F.3d at 333. Further, Dr. Vassallo provided a reasonable explanation for
the lack of past harm to these plaintiffs: “heat stroke is a failure of
thermoregulation which is dramatic and catastrophic. It occurs suddenly . . . .
People can suffer suddenly from heat stroke without ever having complained
about the weather.” As a result, the district court plausibly concluded that the
Plaintiffs here are at a substantial risk of serious harm. 6
       Second, because the Plaintiffs forego exercise and overeat junk food, the
State asserts that their ailments and any accompanying risk are their own
creation.    Prison canteen records confirm these inmates’ consumption of
unhealthy foods with high sugar and salt content. Although this may be true,
the evidence is at best conjectural about the connection between these
plaintiffs’ conditions and their lifestyle. We are constrained to agree with the
district court’s finding that, canteen food comprises only part of the prisoners’
diets, and their medical conditions arise from a combination of factors, many
of which are outside their control. Thus, the district court did not clearly err
when, in the face of conflicting evidence, it found that these prisoners are at
substantial risk of serious harm.
       Finally, that the prisoners suffer year-round high blood pressure is
simply irrelevant to the district court’s substantial-risk finding. The prisoners’
complaint is that their high blood pressure places them at an abnormally high
risk of heat stroke during Louisiana’s extended hot season. The lower risk in
other months does not offset their vulnerability during the summer any more



       6 We emphasize, however, that the finding of substantial risk regarding a heat-related
injury is tied to the individual health conditions of these inmates.
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                                  No. 14-30067
than an allergy to insect bites ceases to exist when the bugs are dormant in
winter.
      The second element for Eighth Amendment liability requires “prison
official[s] [to] have a ‘sufficiently culpable state of mind.’ ” Farmer, 511 U.S.
at 834, 114 S. Ct. at 1977 (quoting Wilson, 501 U.S. at 297, 111 S. Ct. at 2323).
“In prison conditions cases that state of mind is one of ‘deliberate indifference’
to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302-303, 111 S. Ct.
at 2326). Deliberate indifference is itself a two-prong inquiry. An official must
both be “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists” and “he must also draw the inference.”
Id. at 837, 114 S. Ct. at 1979. “Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to demonstration
in the usual ways, including inference from circumstantial evidence, and a
factfinder may conclude that a prison official knew of a substantial risk from
the very fact that the risk was obvious.” Id. at 842, 114 S. Ct. at 1981 (internal
citations and quotation marks omitted).
      The district court relied on a variety of evidence showing that the State
knew of and disregarded a substantial risk to the Plaintiffs. Medical personnel
routinely monitor prisoners and administer medication daily. Correctional
officers “closely monitor” the temperature on death row, recording the
temperature every two hours. Defendant Norwood, moreover, testified that
the prison maintains a list of, and monitors more closely, inmates particularly
susceptible to heat-related illness. None of the Plaintiffs was on the list,
although Norwood personally reviewed the ARPs for each prisoner, inspected
each prisoner’s medical records, interviewed both Ball and Code, and admits
Magee should have been on the list. Defendant Cain admitted that he was
always thinking about “how to overcome the heat” and that he considered
adding extra fans and ice on the tiers. Most strikingly, after this suit was filed,
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and during the court-ordered monitoring period the Defendants surreptitiously
installed awnings and began soaking some of the tiers’ exterior walls with
water in an attempt to reduce the interior temperature. Their trick backfired.
Based on these facts, the district court reasonably inferred that the Defendants
knew of a substantial risk of serious harm to the Plaintiffs.
      Yet the State complains that the deliberate indifference finding is
fundamentally flawed because the district court relied solely on the prisoners’
administrative remedy requests, which are required under the PLRA. See
42 U.S.C. § 1997e(a). If that is sufficient to prove deliberate indifference, the
State continues, then there is no need for a court to separately analyze the
deliberate indifference prong. As a statutory necessity, see Gonzalez v. Seal,
702 F.3d 785, 788 (5th Cir. 2012), every case includes an administrative
remedy request.     Whenever a court finds that a prisoner’s complaint was
justified—i.e., that there is a substantial risk of harm—the defendant will be
guilty of violating the Eighth Amendment.
      We agree with the Defendants’ premise—a request for administrative
relief cannot alone prove deliberate indifference. A request for administrative
relief is at best only circumstantial evidence that a prison official is aware of
facts from which he can deduce a risk of harm; it is not even particularly strong
evidence of that. Because grievances are essentially pleadings, not evidence,
they must have independent verification before they become probative.
Separating the few meritorious complaints from the mountain of frivolous
complaints is as difficult work for prison officials as for federal courts. A
legitimate complaint can go unrecognized by even the most diligent official. As
a result, a prison administrator who has received an administrative remedy
request is not necessarily made aware, without factual corroboration, that
there is a substantial risk of serious harm.


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                                     No. 14-30067
      Although the State’s premise is correct, its conclusion that the district
court’s deliberate indifference finding is erroneous does not follow. The district
court did not base its finding solely on the prisoners’ administrative requests,
but on the totality of the record evidence.            There is more than enough,
particularly in light of the State’s attempt to cool down the cells with awnings
and misting without telling the court, to prove subjective awareness of a
substantial risk of serious harm. Therefore, the district court’s deliberate
indifference finding is not clearly erroneous.
      Even if it cannot overcome the district court’s factual findings, the State
argues that this court’s decision in Gates v. Cook precludes liability. Gates
upheld an injunction requiring Mississippi to equip each cell with fans, provide
inmates with additional access to ice water, and allow daily showers when the
heat index in the cells exceeded 90º F. 376 F.3d at 339. The State claims to
offer these exact remedies year-round.
      The district court, however, demonstrated that Gates is distinguishable.
Where Gates approved fans for each cell, each fan in Angola’s death row serves
two cells. Ball v. LeBlanc, 988 F. Supp. 2d 639, 680 n.100 (M.D. La. 2013).
Although a seemingly minor difference, the district court found that “the fans
[at Angola] [do] not provide equal amounts of air flow to each cell, nor [do] the
fans provide a detectable cooling effect.” Id. The district court in Gates also
ordered increased in-cell access to ice. 376 F.3d at 339. Here, by contrast,
inmates have unfettered access to ice only during the one hour a day they can
walk the tiers. 7 Ball, 988 F. Supp. 2d at 680 n.100. When the prisoners are in
their cells, they depend on other inmates or guards for ice. Id. And while the
State allows prisoners to shower once a day, as approved in Gates, the water


      7 Even then, obtaining ice is no guarantee. The record suggests that the ice machine
occasionally breaks down leaving the tier ice chests empty.

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                                          No. 14-30067
temperature is maintained between 100 and 120º F. for sanitation purposes,
thus providing little relief from the heat. Id. Given these material differences,
Gates does not preclude holding that the State violated the Eighth
Amendment.
       Based on its findings of fact, we affirm the district court’s conclusion that
housing these prisoners in very hot cells without sufficient access to heat-relief
measures, while knowing that each suffers from conditions that render him
extremely vulnerable to serious heat-related injury, violates the Eighth
Amendment.
                                   III.     Disability Claims
       The inmates assert that the State’s failure to alleviate the heat violates
their rights to a reasonable accommodation for their “disabilities” under the
ADA and RA. 8 The district court rejected the prisoners’ claims because they
presented no evidence that they are disabled. 9 Ball, 988 F. Supp. 2d at 687.
The prisoners argue that the district court’s conclusion rests on an abbreviated
definition of disability and superseded case law. Although the prisoners are
correct, there is still no evidence that the prisoners are disabled under the
correct definition, so any error was harmless.
       We review the district court’s conclusions of law de novo, and its factual
findings for clear error. Lightbourn v. Cnty. Of El Paso, Tex., 118 F.3d 421,



       8  On appeal, the prisoners also assert a disparate-impact claim. But the prisoners’
complaint does not allege a disparate-impact claim and, as far as we can tell, this appeal is
the first time the prisoners have asserted such a claim. “It is a bedrock principle of appellate
review that claims raised for the first time on appeal will not be considered.” Stewart Glass
& Mirror, Inc. v. U.S. Auto Glass Disc. Ctr., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).
Accordingly, we will not address the prisoners’ disparate-impact claim.

       9 To succeed on a failure-to-accommodate claim, a plaintiff must prove: (1) he is a
qualified individual with a disability; (2) the disability and its consequential limitations were
known by the covered entity; and (3) the entity failed to make reasonable accommodations.
Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013). The ADA applies to
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                                       No. 14-30067
426 (5th Cir. 1997). If the district court made a legal error that affected its
factual findings, “remand is the proper course unless the record permits only
one resolution of the factual issue.” Pullman-Standard v. Swint, 456 U.S. 273,
292, 102 S. Ct. 1781, 1792 (1982); see also Aransas Project v. Shaw, 775 F.3d
641, 658 (5th Cir. 2014), cert. denied, No. 14-1138, 2015 WL 1255228, at *1
(June 22, 2015).
       Under both the ADA and RA, 10 a person is disabled if he has “a physical
or mental impairment that substantially limits one or more major life
activities.” 42 U.S.C. § 12102(1)(A). The statute defines a major life activity
in two ways. First, major life activities include, but are not limited to:
       caring for oneself, performing manual tasks, seeing, hearing,
       eating, sleeping, walking, standing, lifting, bending, speaking,
       breathing,    learning,   reading,   concentrating,    thinking,
       communicating, and working.

Id. § 12102(2)(A). Second, a major life activity includes “the operation of a
major bodily function.” Id. § 12102(2)(B). Such functions include, but are not
limited to:
       the immune system, normal cell growth, digestive, bowel, bladder,
       neurological, brain, respiratory, circulatory, endocrine, and
       reproductive functions.

Id. The prisoners can prove themselves disabled if their ailments substantially
limit either a major life activity or the operation of a major bodily function.
       The prisoners point out that the district court considered whether they
are disabled only under the first definition of major life activities; it did not



prisoners. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952, 1956 (1998). The
district court found each prisoner failed to prove the first prong—i.e., that they are disabled.

       10 The RA incorporates the ADA definition of disability by reference. See 29 U.S.C.
§ 705(20)(B). Accordingly, if the prisoners are disabled, they are disabled under both
statutes.
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                                     No. 14-30067
consider whether their impairments affect a major bodily function. We agree.
The district court quoted only the first definition of a disability, but it
overlooked that “a major life activity also includes the operation of a major
bodily function.” Id. § 12102(2)(B). The district court also partially relied on
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681
(2002), which Congress superseded in the Americans with Disabilities
Amendments Act of 2008 (“ADAAA”). Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d
242, 245 (5th Cir. 2013).
       Although this error may have affected the district court’s determination,
the question remains whether any evidence supports the prisoners’ disability
claims. The prisoners argue that “thermoregulation” is a major life activity,
there is ample evidence in the record showing their thermoregulatory functions
are impaired, and therefore they are disabled.
       Assuming arguendo that thermoregulation is a major life activity, 11
there is no evidence that these prisoners’ thermoregulatory systems are
actually impaired. According to Dr. Vassallo, thermoregulation is “the capacity
of the body to maintain the temperature of 98.6 within half a degree or so.”
There is no evidence that the prisoners’ ailments have ever caused their body
temperatures to rise above 98.6º F. In fact, Dr. Vassallo testified that the
prisoners’ symptoms are consistent with normal body temperatures, there is
no indication that these prisoners have ever had elevated body temperatures,



       11 The prisoners urge this court to hold that thermoregulation is a major bodily
function (and thus a major life activity) because the ADA’s list is non-exhaustive. See
42 U.S.C. § 12102(2)(B). Before the passage of the ADAAA, this court left undecided whether
“the regulation of body temperature constitutes a major life activity under the ADA.” EEOC
v. Argo Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009). Post-ADAAA, no court has
held that thermoregulation is a major bodily function, nor do EEOC regulations list
thermoregulation as a major bodily function. 29 C.F.R. § 1630.2(i)(1)(ii). Accordingly, we
take the cautious route and assume without deciding that thermoregulation is a major life
activity.
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                                        No. 14-30067
and there is no evidence that these prisoners ever experienced difficulty in
thermoregulating.
       That the record is devoid of such evidence is unsurprising. Over the
course of the three-day trial, there is hardly any mention of the prisoners’
disability claims. The overwhelming majority of the testimony related to the
future risk of heatstroke, not the prisoners’ present inability to maintain
regular body temperature.             As a result, the medical testimony focused
generally on the risks to individuals with the same ailments as these prisoners,
not on any limitations the prisoners presently experience.                    The prisoners’
counsel, moreover, never asked the three medical experts whether the
prisoners’ thermoregulatory systems are actually impaired, probably because
evidence in the record precludes any such assertion. This lapse is fatal to their
disability claims. As this court has said before, although the current definition
of disability “expresses Congress’s intention to broaden the definition and
coverage of the term ‘disability,’ it in no way eliminated the term from the ADA
or the need to prove a disability on a claim of disability discrimination.” Neely,
735 F.3d at 245. 12 The disability claims are insupportable as a matter of law
even under the expanded legal definition of disability.




       12Ball also argues that he is disabled because diabetes impairs his endocrine system
and his sight. Although this might be true, that Ball’s endocrine system and sight are
impaired does not entitle him to relief from the heat. Only if Ball’s diabetes limits his ability
to thermoregulate, can Ball get the only relief he requested—an order requiring Louisiana to
keep the prison at or below 88 degrees. As for that claim—that Ball’s diabetes impairs
thermoregulation—there is no evidence in the record.
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                                   No. 14-30067
                                 IV.   The Injunction
      To remedy the Eighth Amendment violation, the district court ordered
Louisiana to “develop a plan to reduce and maintain the heat index in the
Angola death row tiers at or below 88 degrees Fahrenheit.” Ball, 988 F. Supp.
2d at 689. Effectively, the plan requires the State to install air conditioning
throughout death row housing. The State attacks the district court’s order in
two ways. First, it contends that the requirements for injunctive relief are not
present here. Second, it argues that the injunction is overbroad because air
conditioning is beyond the measures endorsed in Gates v. Cook and facility-
wide relief violates the PLRA.
      This court reviews permanent injunctions for abuse of discretion.
Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 254 (5th Cir.
2014) (citing N. Alamo Water Supply Corp. v. City of San Juan, Tex., 90 F.3d
910, 916-17 (5th Cir. 1996)). An abuse of discretion occurs when the district
court “ ‘(1) relies on clearly erroneous factual findings when deciding to grant
or deny the permanent injunction[,] (2) relies on erroneous conclusions of law
when deciding to grant or deny the permanent injunction, or (3) misapplies the
factual or legal conclusions when fashioning its injunctive relief.’ ” Id. (quoting
N. Alamo Water Supply Corp., 90 F.3d at 916-17).
      The court did not abuse its discretion by deciding to issue an injunction.
The State’s first argument is that an injunction is improper because conditions
to which these prisoners were subjected do not violate the Eighth Amendment.
This contention fails in light of our sustaining the district court’s Eighth
Amendment analysis. Moreover, in Gates as in other cases, courts have upheld
injunctions in Eighth Amendment cases alleging unreasonably risky exposure
to extreme temperatures. See Graves v. Arpaio, 623 F.3d 1043, 1045 (9th Cir.
2010) (per curiam) (leaving an injunction in place requiring a prison to keep
inmates on certain medications in cells with temperatures below 85 degrees);
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                                  No. 14-30067
Jones-El v. Berge, 374 F.3d 541, 542 (7th Cir. 2004) (upholding order to install
air conditioning in Wisconsin’s “supermax” prison).
      The scope of the injunction is another matter. The PLRA greatly limits
a court’s ability to fashion injunctive relief. Before a district court can award
such relief, it must find that “such relief is narrowly drawn, extends no further
than necessary to correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation.” 18 U.S.C. § 3626(a)(1)(A).
The court must also “give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the relief.” Id.
If, after making the necessary findings and weighing the adverse impact on
the criminal justice system, the court still feels injunctive relief is required,
such relief “shall extend no further than necessary to correct the violation of
the Federal right of a particular plaintiff or plaintiffs.” Id.
      The district court’s injunction violates the PLRA in two ways. First, the
district court ordered a type of relief—air conditioning—that is unnecessary to
correct the Eighth Amendment violation. Under the PLRA, plaintiffs are not
entitled to the most effective available remedy; they are entitled to a remedy
that eliminates the constitutional injury. See Westefer v. Neal, 682 F.3d 679,
683-84 (7th Cir. 2012) (vacating an injunction under the PLRA because it
exceeded what was required under the Due Process Clause).               In Eighth
Amendment cases, plaintiffs can only obtain a remedy that reduces the risk of
harm to a socially acceptable level. Some risk is permissible and perhaps
unavoidable. Here Plaintiffs’ own expert, Dr. Vassallo, explained that there
are many acceptable remedies short of facility-wide air conditioning.          For
example, the Defendants could divert cool air from the guards’ pod into the
tiers; allow inmates to access air conditioned areas during their tier time; allow
access to cool showers at least once a day; provide ample supply of cold drinking
water and ice at all times; supply personal ice containers and individual fans;
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                                     No. 14-30067
and install additional ice machines. These are precisely the types of remedies
this court endorsed in Gates v. Cook and that the PLRA requires. See 376 F.3d
at 339-40. Accordingly, on remand the district court must limit its relief to
these types of remedies.
      The district court also erred because it awarded relief facility-wide,
instead of limiting such relief to Ball, Code, and Magee.         The district court
apparently understood that it could not order facility-wide relief. At the start
of trial, the district court said:
      This is not, contrary to widespread belief, an effort to require the
      state to install air-conditioning for all of the tiers that house all
      death row inmates. I think the application for injunctive relief
      made clear that it’s only these three inmates that are of issue. And
      so, of course, the evidence in this case will pertain to any facts that
      are relevant as to these three . . . . plaintiffs and these three
      plaintiffs only. This is not a class action lawsuit. This is not,
      again, an effort to seek relief for anyone other than these three
      inmates.

It is unclear why the district court changed its mind when it fashioned the
injunction. The PLRA limits relief to the particular plaintiffs before the court.
18 U.S.C. § 3626(a)(1)(A). This is not a class action; Ball, Code, and Magee are
the only plaintiffs before the court. As a result, any relief must apply only to
them, if possible. Brown v. Plata, --- U.S. ---, 131 S. Ct. 1910, 1940 (2011)
(holding that “the scope of the order must be determined with reference to the
constitutional violations established by the specific plaintiffs before the court”);
Gates, 376 F.3d at 339 (vacating an injunction that purportedly applied to
prisoners outside the class of plaintiffs because “it exceeds the scope of the
litigation”); see also Graves, 623 F.3d at 1049-50 & n.2 (noting that if the
district court can limit relief to an affected class-member, it must do so under
the PLRA).



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                                  No. 14-30067
      Nevertheless, the district court ordered relief to all 85 death-row inmates
because “the Defendants may move any death row inmate to a different tier
and/or cell at any time.” Ball, 988 F. Supp. 2d at 688-89. Essentially, it felt
the only way to provide effective relief to these three plaintiffs is to provide
facility-wide relief. The district court’s determination, however, is erroneous.
Even assuming that air conditioning is an acceptable remedy here—and it is
not—it is possible to provide air conditioning solely to these three inmates. As
the Defendants acknowledged at oral argument, Plaintiffs could be placed in
cells next to the officers’ pod, which are cooler than those farther down the
tiers. Louisiana could also air condition one of the four tiers for the benefit of
prisoners susceptible to heat-related illness. When coupled with an order not
to move the Plaintiffs from these cells unless certain conditions are met, these
options could adequately remedy the Plaintiffs’ constitutional violation.
Moreover, the Gates-type remedies available on remand—increased access to
water, ice, cold showers, etc.—ought to (and must) be tailored to these three
prisoners.
      Because the district court’s injunction provides an unnecessary type of
relief and applies beyond these three Plaintiffs, it violates the PLRA.
Accordingly, the district court abused its discretion.
      Finally, we note the substantial disparity between the relief ordered in
Gates and the scope of the injunction in this case. The Gates court did not
mandate a maximum heat index applicable in the Mississippi prison.              It
required particular heat measures, including fans, ice water, ice, and showers,
“if the heat index reaches 90 degrees or above.” Gates, 376 F.3d at 336. The
injunction here requires relief that is far more extensive, applies even during
months when there is no heat risk to the Plaintiffs, covers the entire facility,
and of course is expensive.      Since Gates upheld an injunction providing
narrower relief, and there is no showing that the Constitution mandated more
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                                  No. 14-30067
relief for these prisoners for the same prison condition in this case, on remand
the court must craft relief more closely aligned with Gates as well as consistent
with the PLRA.
                                CONCLUSION
        For the foregoing reasons, we AFFIRM the district court’s resolution of
the Eighth Amendment and disability claims, but VACATE and REMAND
the district court’s injunction for reconsideration under the principles stated
here.




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                                No. 14-30067
REAVLEY, Circuit Judge, dissenting.
      I agree with almost all of the opinion, but I would affirm the injunction
which in principal only orders the heat index in the Angola death row tiers to
be maintained below 88 degrees.




                                      23
