Tuesday, June 19, 2012

Appellate judge: 'These guys are sitting in an oven ... and no one gives a darn'

Last year a federal district judge in south Texas threw out a lawsuit by an aged prisoner who sued over extreme heat in the un-air conditioned prison dorm he was in. The case, Eugene Blackmon v. Warden Kukua, et al, was appealed to the 5th Circuit and heard at oral argument by a three-judge panel on June 4. (You can listen to oral arguments here; the case number is 11-40316.)

At trial, the judge entered a directed verdict after plaintiff's arguments, so the state never had to put on a defense. The judges on the 5th Circuit, though, seemed less sure the case hadn't been made. Testimony at trial indicated that, in the summer of 2008, the heat index (the combined effect of temperature and humidity) was 126 degrees or more on more than 10 days, at one point reaching 130 degrees in the closed dorm room with no open windows. At those heat levels, said Blackmon's attorney, expert testimony before the court indicated "heat stroke is not only probable but imminent."

Judge Carolyn Dineen King seemed especially inclined to allow the suit, declaring to the state's attorney at one point that "If you win this case it's by a very thin reed." The question in her mind, she said, wasn't whether it was negligent to house prisoners in such conditions but whether it rose to the level of a constitutional violation. At one point Judge King declared, "these guys are sitting in an oven in the heat of the heat and no one gives a darn, is how this is coming across." Ouch! She added that "There's not a person in this room who would go and sit in that prison for a day in that kind of heat." At one point she asked, "do we have to wait till you kill someone in order for that person to have a cause of action?" The state's attorney answered "no," but could not articulate at what point prior to death a prisoner could sue over excessive heat.

If the 5th Circuit rules in the plaintiff's favor, the case will be remanded to the lower court for a new trial, which this time would surely be seen through to a conclusion and a jury verdict.

30 comments:

Another friend said...

We need to require the legislators to spend a summer day inside one of these dorms. You know, a special session in June or July, all day, including the late afternoon, with limited access to drinking water which is the case in some units. There are women's units in Gatesville that have very little ventilation and no A/C.

Anonymous said...

If you really want to piss off a bunch of taxpayers in today's economy, start advocating that prisons be required to be air conditioned. For God's sake, there are probably thousands of low income people in Houston, Texas right now that will have to endure the summer without air conditioning. And don't even get me started on the troops who've served in even worse heat in Iraq and Afghanistan. I wonder if Mexican prisons are air-conditioned? This is the kind of liberal mindset that has resulted in this country being nearly 16 trillion dollars in debt with no end in sight.

For those who think this sounds insensitive, there is a really SIMPLE solution to this problem: Follow the law and don't get sent to prison. Then you are quite free to show a little good judgment and initiative to the point that you can buy your very own air conditioner and pay for your own electricity.

Prison Doc said...

My life would be a lot easier if the housing units were all air conditioned.

That being said, I have never seen a heat related problem arise from the housing units. I don't think they are as hot as people let on. Buildings that are designed to be unairconditioned don't get as hot as buildings that aren't. The security staff don't complain, and they are in there too.

People who make statements like Anon 4:09's last paragraph should have to spend the summer in an unairconditioned unit. I get so tired of hearing that line.

Too bad I use it myself!

Anonymous said...

A constitutional violation? Give me a break! At the time the 8th Amendment was adopted there was NO air conditioning. In fact, as recently as the 1960's only 10% of the homes in this country had air conditioning. This is exactly the type of frivolous inmate litigation that causes people to lose respect for our government and, more especially, the federal judiciary. God help us!

Harry Homeless said...

You really should disallow anonymous comments here to screen out the cowards who are pro-suffering and pro-abuse. Innocent people are in those prisons too and no one who is commenting is doing so from a place without A/C (rental units without working A/C are a code violation by the way). Inhumanity is not the path to salvation.

Bottom line is, no one here is smarter than Jesus and we all know what he had to say on this matter.

Anonymous said...

Jesus didn't have air conditioning either.

Anonymous said...

There's a middle ground between requiring air conditioning at 78 degrees at all prisons and doing nothing while elderly or infirm prisoners bake in their cells.

sunray's wench said...

It's not necessarily about installing A/C, it's about the state not doing enough to prevent a death when that death is preventable. It is about culpable negligence.

The Anons who say "don't break the law so you don't end up in jail" are right up to a point, but many inmates are not there for breaking another law. They are there for parole revokations when they couldn't find a job to pay the parole fees or child support. And if society - that's YOU dear Anons - demand that these people be incarcerated by the way you vote (or choose not to vote), then YOU have to foot the bill when the conditions you sanction result in a preventable death.

PAPA said...

"WE THE PEOPLE" don't have to break the law to end up in jail this day and time. Ghost Laws?...just make someone mad so they will make up a lie to get you there.GET REAL PEOPLE,at least those that live in housing without AC can walk out side to get a breeze,open a window and door,sit on their porch are under a shade tree.Inside the Texas Prisons the cells have a 4"x8" (that is inches if you note) window that cannot be opened,in the cell door there is a bean slot, no window to draw a breeze through, the attic fan that is claimed to pull the heat out of the building, how can it when the cell doors are closed,no windows, and the fan is in the center of the room?plus never are working.GET REAL the TDCJ inmates have to wet down their t-shirts,towels, and sheets to keep the heat down in their bodies,at least just set up cots or put up tents out in the yards where they can get the Texas winds at night,some of the units are so old the Inmates can't use a fan if they can buy one because the wiring will not carry the electrical load. Assistant Warden Pitman was the only official that was known to take the inmates cups and ice two times a day the summer Texas had all the hot days in a row and he probably saved a lot of lives. Heat creates worst heart problems which is one of the leading health problems in TDCJ, heat and diet.Oh yeah, for the guards that write on here as unknown,"WE THE PEOPLE" know that your PITs are Air Conditioned, that the majority of you sleep on the floor during your shift under the AC and don't make your rounds or do your jobs because it is to hot to go out there.Yes lets sentenced the Texas Legislators/officials in charge to a week of Texas Heat and see how fast the AC get installed.Go Judge declare it inhumane and order TDCJ to install AC and proper heating in all the Texas Prison Units,if you are going to lock them up then you are going to be held responsible and accountable for their care...Cruel and Unusual Punishment at its worst...Also install some ice machines so the Inmates can get cups of ice,not those water jugs hung on the wall, install some machines like the Feds have for the inmates

Gritsforbreakfast said...

4:09, if it ever gets to the point where AC is required, it will be because a federal judge ordered it and at that point I don't know what pissed off taxpayers can do about it. In reality, they aren't asking for AC in every unit but access to ice water and policies that account for inmates with special needs, older inmates, etc., as 7:17 notes.

5:06, it's true they had no AC when the Constitution was written. You know what else we didn't have in the United States back then? Prisons! The first state prison opened in 1821 in Pennsylvania. They also did not have such long lifespans. Nobody in 1789 could conceive of the remote possibility of sentences as long as are routinely handed out today, much less the idea that somebody might serve them in to the 60s or 70s.

Finally, Prison Doc, this particular unit uses converted military dorms and in fact are not among the old units designed for no AC, which is part of the problem. You say the security staff don't complain, but the court was told at this unit (in Beeville) the staff mostly stayed in an AC'd area and only endured the heat when they made rounds or had specific reason to go into the dorms. Anyway, even where they don't have AC in their own areas, I'd bet dollars to donuts it's untrue that "The security staff don't complain." In my experience, they complain about everything else.

Jefe said...

Yes, people did live before air conditioning, but those homes were designed to allow breezes to cool off the inhabitants. These buildings have no access to outside air. It is the equivalent of leaving your child or dog in a parked car with the windows rolled up, which is by the way, illegal.

Texasred said...

Thanks Grits...I served several months at the facility (Beeville) myself and I can tell you that the unit was initially built for TYC and to be air conditioned...in fact there are two huge a/c units on-site but in need of repair.
The state attempted to turn the unit over to immigration to detain "undocumented guest workers". They turned it down because it didn't meet federal standards.The heat in July does help the staff in one regard...none of the inmates have the energy to be disruptive,they are to busy trying to breathe.

Michael said...

Um .. put bars on the window, if they aren't already there, and open the windows. See if that helps. If not, add fans and maybe move the sick and elderly to prisons with A/C. Easy, inexpensive, and humane.

Of course, the best way to keep the cost of prisons down would be to reduce sentences and decriminalize many non-violent behaviors: we've become a nation of control freaks.

Anonymous said...

To Scott/Grits RE: the good old days before prisons existed: I would be cautious about opening that door if I were you. Would you REALLY like to discuss how society handled criminals back then?

Anonymous said...

Having just retired from 16 years of Corectional nursing With UTMB-CMC. I can say that I know well the problem the summer months brings to most of the TDCJ facilities. I was the Nurse Manager for two units that were not air conditioned as most are not. There are facilities that are - like Cotulla in Dilly. TDCJ/UTMB do have policies in place that try to address the problem of heat related illnesses in the offender population. These policies don't address the problem as much as they make medical personal the fall guys for any bad out come and there will always be bad outcomes without air conditioning. There was a heat related death at the Dominguez Unit less than a year ago. Still we all know what the price tag would be to address this problem. I too think that in the end it will be a federal judge that hoists this burden on tax paying Texans. At this point in time the entire prison health care system is is dangerously under funded and the quality of offender care is at an all time low. In time a federal judge will step in in this area also. so, gerd your loins tax payers eventually the sky will fall.

Gritsforbreakfast said...

9:04, "cautious" or not, it's the truth, and truth is truth, regardless of what I "want." There were also no municipal police forces in the US when the constitution was enacted - Boston's was created in the 1830s, NYC's in the 1840s. The eighth amendment and the Bill of Rights in general was written at a time when the modern police apparatus, overcriminalization and mass incarceration were inconceivable. See Bill Stuntz for an excellent discussion of the implications of that historical anomaly.

Gatesville Gulag Watcher said...

The Women Unit in Gatesville and Hobby in Marlin have Warden who will bolt the windows shut and not allow them to be open. Those Wardens should be in prison for bolting the windows shut. If the windows were open that would at least help and not cost one dime. Public housing has A/C and many refuse to use it but open their windows. As a former military person, there are ways to cool off and even today they have A/c available to them. Riverside has fans and the guards will turn them off out of spite on the Crain Unit, this Unit will also turn off the A/c at visitation of not allow visitors to sit under the shade trees just to ruin visits or discourage them or make visitors sit outside when it is too hot and on cool days make people sit inside in the heat. Those old building were built so that when the units were opened there would be at least bearable. The tax payers vote to lock up everyone and now it is time to pay for this justice we all seek. DO NOT BREAK THE LAW? When the law breaks to law then there is no law. When the people working on the units in Gatesville break the law then it is okay? The wrong people in many cases today are sitting behind bars the people working in the prisons are the real criminals right along with the so called elected leaders that buy their offices and positions on the state Commissions. Remember our founding fathers were liberals and did not thump the bible because they knew how cruel bible thumpers could be, all men created equal, government for the people and by the people. I will take a liberal over a bible thumper who can be bought and paid for any day. GATESVILLE HOME OF THE TEXAS GULAGS!!!

john said...

What if as part of their training to be judges, they had to be terrorized, tasered & harrassed by coppers, then thrown in the jail pits to eat baloney, etc.?
Oh, wait, what training? It's just about politics and money.
IT'S A POLICE STATE, the most in jail of any country on Earth. Follow the money.

Eeyikes, it's crapcaptcha! I prove I'm not a robot when I see the drones circling?

Phillip Baker said...

Here we are again, another summer of horror stories from our brutal prisons. As I recall, last summer a prison nurse, posting anonymously(at least he/she had a valid reason for that, you cowardly anons out there) said she had personal knowledge of 2 heat-related deaths at her unit, both hushed up.

Comparisons of how free people handle the heat with how prisoners can deal with it are specious on their face. Out here we can- and do- get out of the house, sit in the shade, hang out in malls, have personal fans, etc. These men and women are forcibly trapped in small steel and concrete cells. Never forget that. Workers who install cable in houses will not get up in those attics in the heat of the day, or take VERY frequent breaks if they do. The giant fans- which even if available often do not work - can only move superheated air around the building. Fans are useful in cooling ONLY when blowing directly on you, and even then ineffective if only moving over-heated air. And the guards often DO have AC in their control rooms and tend not leave them unless they just must. And no, misbehavior does not go down in the heat, it goes up- as hot, sweaty, stinky men forced into too crowded a place get short tempers, fights break out,etc. Big surprise.

As noted already, we are only a few deaths from heat stroke (Texas will tolerate some deaths, just not "too many", to our shame.) before TDCJ makes changes. 4:09 would fit right in with upper management of TDCJ. Historically, the ONLY reason prisons improve conditions is when courts smack them down, award huge settlements, and put the system under supervision. It sure isn't the deep humanity of the 4:09's of the world- until it is somebody they know or love. Then the whole tune changes to outrage and demands for reform.

Thomas R. Griffith said...

Hey Grits, on behalf of the public at large & GFB subscribers, I'm starting up a Petition.

PETITION

In order to rid the GFB Comment Section once and for all of folks that; rant, rave, preach, teach, bitch, moan, groan, gripe, call out, present facts, spell checkers, grammer checkers, & assholes in general that utilize un-tracable call signs such as as Anonymous or random letters put in line to form what looks like a name -

We ask Grits to revamp the site's Comment Section removing the Anonymous option. Doing so would prevent GFB Comment Sections from being constantly hijacked by unknowns. Spouting bullshit would still be the norm but atleast everyone would know the email address of the fools. Some unkowns have remaind very professional and have gained our respect only to be guilty of association due to picking the same gang signs as those that don't.

Please Comment on the GFB Blog Post above and sign the Petition here before you log off. We can make the GFB Comment Section a great place to visit & learn about
topics the main stream media refuses to properly cover and leave or reply to Comments under our real names or continue to let others ruin it. Ask Scott to bring in the exterminator and gain control over the bugs.

Anonymous said...

To Anonymous who indicated it was as simple as one not breaking the law:

You are incredibly naive. There are people daily being incarcerated for crimes they have not committed. The justice system is broken and those like you have no idea of the reality. I can only pray that you never have an up close and personal experience with the corrupt justice system. I can only pray that you do not lose your home, your financial stability, your family member at the hands of these corrupt individuals. Please note that I am not saying ALL are corrupt. I am saying that there are enough that you should be standing up and paying attention.

If you keep saying such things, you might consider that one day you may be pulled over for a minor traffic violation and it turns into the biggest nightmare of your life.

Anonymous said...

Having retired from Allred Unit I can say this: the officers were required to take ice and water to each cell in ad seg and gp once per shift. The dorms have refrigerated water coolers and high security is air conditioned.
11 bld"s windows were welded shut per the first wardens' orders, ie Warden Woods. I am worked many a night over there in the heat. I never worked days because of the heat and quite frankly the bull shit that goes on days.
It all boils down to money. Yes the newer units should be air condioned! But in reality don't expect it, untill a federal judge makes a ruling!
As for signing anonymous I still have family that work at Allred

Anonymous said...

Anonymous said...

"For those who think this sounds insensitive, there is a really SIMPLE solution to this problem: Follow the law and don't get sent to prison."

IN TEXAS, IT DOESN'T MATTER IF YOU FOLLOW THE LAW YOU CAN STILL GO TO PRISON. HAVE YOU COUNTED THE NUMBER OF EXONERATIONS? WAIT UNTIL IT IS YOU DRESSED IN WHITE AND LIVING IN A WREST TEXAS POLE BARN FOR SOMETHING YOU DID NOT DO!

TEXAS SUCKS. PERIOD!

Rachel said...

"Jesus" could go outside, or sit under a tree, or cool off in a river...so give it a break! People are not taking into consideration that these buildings are metal and the inmates do not have access to open windows. If dogs in the pound were subjected to these temperatures, people would be outraged.

How many of these "if you don't break the law..." bloggers have broken a law at some point, but just never got caught, or never had to serve time for it.

Phillip Baker said...

OK, this is probably too late , since everybody has moved on to other topics. But I just need to point out something to 4:09 and the others who bring up our troops. According to my understanding (I am not a vet, and could be wrong) Brown and Root- or whatever they have named themselves these days, has for years made billions by catering to the needs of our troops. Remember, most troops never leave a base; they're support. B&R comes in, builds a small city for the troops- complete with air conditioned sleeping quarters, rec centers, etc, plus all the stuff you'd find in a small US town like fast food joints, souvenir shops, movies, etc. Now, there are without doubt some troops who endure great hardships in our service, and I mean NO disrespect to them or any of those serving. We have the best military forces in history. They are awesome.

But like cops, people tend to hype them. Yeah, cops potentially "put their lives on the line" for us every day, but that is not the reality. Cops and fire fighters do great jobs that they chose, face real dangers, and deserve our respect. They also make big bucks doing it.But just because someone served as a cop or fire fighter or soldier, he/she is not automatically a "hero". They are (we hope) professionals who chose a job they wanted and get paid well for it. The automatic hype to "hero" and "enduring extremes heat and cold" is hardly necessary.

Nurseypooh said...

There are not enough geriatric or special mediclal need beds in TDCJ to house them. This need has grown and will continue to grow as long as our aging offender pop. does, no money was put aside to plan for these needs, heck the leg. doesn't give them enough money for reg. health care. 2 years ago before all the budget constraints TDCJ had aquired a older VA hospital and had intentions of making it a Geri and assisted living unit, money had been set aside but it was redlined (taken away). There are not enough mental health beds either but that is another soap box. People die of heat related illness in the freeworld everyday, a lot of times it's the medications they are on that make things worse on them, high blood pressure and psych meds which deplete a body of fluids.

Anonymous said...

Understand that ac would help protect the officers that get assaulted because of short fuses caused by being stuck in the intense texas heat. Workers comp claims for guard assaults costs money too. U r no different from a defendant that reacts on impulse and doesn't think of the long term or more serious consequences that result from a dumb action ...and in your case...a dumb comment.

polscigrad said...

How many fatalities will it take? One and counting. http://www.texastribune.org/texas-dept-criminal-justice/texas-department-of-criminal-justice/tdcj-files-wrongful-death-lawsuit/

Anonymous said...

Kudos to Papa, I was going to write my own commentary, but his said it all:
"WE THE PEOPLE" don't have to break the law to end up in jail this day and time. Ghost Laws?...just make someone mad so they will make up a lie to get you there.GET REAL PEOPLE,at least those that live in housing without AC can walk out side to get a breeze,open a window and door,sit on their porch are under a shade tree.Inside the Texas Prisons the cells have a 4"x8" (that is inches if you note) window that cannot be opened,in the cell door there is a bean slot, no window to draw a breeze through, the attic fan that is claimed to pull the heat out of the building, how can it when the cell doors are closed,no windows, and the fan is in the center of the room?plus never are working.GET REAL the TDCJ inmates have to wet down their t-shirts,towels, and sheets to keep the heat down in their bodies,at least just set up cots or put up tents out in the yards where they can get the Texas winds at night,some of the units are so old the Inmates can't use a fan if they can buy one because the wiring will not carry the electrical load. Assistant Warden Pitman was the only official that was known to take the inmates cups and ice two times a day the summer Texas had all the hot days in a row and he probably saved a lot of lives. Heat creates worst heart problems which is one of the leading health problems in TDCJ, heat and diet.Oh yeah, for the guards that write on here as unknown,"WE THE PEOPLE" know that your PITs are Air Conditioned, that the majority of you sleep on the floor during your shift under the AC and don't make your rounds or do your jobs because it is to hot to go out there.Yes lets sentenced the Texas Legislators/officials in charge to a week of Texas Heat and see how fast the AC get installed.Go Judge declare it inhumane and order TDCJ to install AC and proper heating in all the Texas Prison Units,if you are going to lock them up then you are going to be held responsible and accountable for their care...Cruel and Unusual Punishment at its worst...Also install some ice machines so the Inmates can get cups of ice,not those water jugs hung on the wall, install some machines like the Feds have for the inmates

Angels Kites said...

Ok so we all know the problem and gripe all day. Question now is how do we fix it? Allred had a high of 115 the other day. Imagine what it was like in the dorms. Fans blow hot air. Allow us to buy ac for our family or get with all the families I bet you we could raise enough to get the air conditioning. I'm not saying give them 70 degree weather year round I understand their in jail and it's a punishment but it shouldn't be torture.