*1 permit panel’s plainly To erroneous interpretation of their materially identical to control in our opinion this issue circuit federal counterparts including this — Supreme in reliance on the Texas interpretation Court’s court’s of Title VII in Gar- ability theoretical to correct it is to de special guiding cia—and the role the Tex- facto “abdicate our mandate decide is- Supreme as Court affords federal law in in sitting diversity.” sues of state law when this context all demonstrate that the pan- Ass’n, Inc., v. Lead Indus. holding el’s wrong. panel not, does Jefferson (5th Cir.1997). course, cannot, Of any meaningful offer support Peterson, David who has shown that his for its plaintiffs conclusion that must be age motivating was a in employ- factor his prevailing parties in order to obtain attor- him, 21.125(b). er’s decision to fire ney’s will find no solace fees under section in ability rule, the state courts’ to correct our panel’s which per attorney’s se denies cases; mistakes future he has circumstances, received fees in the relevant will justice court, no prompt or other- have a detrimental effect on ability Co., wise. See Louisiana Power & Light plaintiffs prosecute their rights. civil 31-32, (Brennan, And, 360 U.S. at 79 S.Ct. 1070 above, Ias described when cases are J., dissenting). brought, panel’s holding will result in unnecessary burdens and costs related to Moreover, above, explained as I pan- injunctions nobody actually wants. relating el makes an obvious error to fed- We should take these seriously. By harms in stating eral law that a who deny virtue its decision to en banc re- obtains no damages injunction may and no case, hearing of this the court chooses only fees, recover attorney’s minimal con- ignore panel’s distortion of both state trary to our holding in Garcia. See 201 published and federal law in a opinion. I F.3d at panel’s 679. And the distor- respectfully dissent. misapplication, tion and in a published opinion, of rules of statutory construc-

tion—the same rules of construction that recognized in federal may lead to law— among

confusion lower courts and affect analysis

their statutory issues of inter- HINOJOSA, Individually Ramona as a pretation under generally. federal law Wrongful Beneficiary Death and as Our deny court’s decision to rehearing en the Heir to the Estate Albert Hino ignores banc these errors allows josa, Plaintiff-Appellee, misstatements of federal law to stand. The courts should be aware the pan- el’s opinion this case is inconsistent with LIVINGSTON; Thaler; Brad Rick prior precedent our and should not be led Stephens, William Defendants- astray by panel’s analysis. See EEOC Appellants. Inc., Grp., LHC

Cir.2014) (if conflict, No. 14-40459. prior decisions subse- quent panels must adhere to the first deci- Appeals, United States Court of sion). Fifth Circuit.

Conclusion Nov. purpose

The text and of the Texas statu-

tory provisions, the federal courts’ uniform *4 Edwards, Medlock, midnight,

Jeff S. Scott Charles reported an inmate that Hinojo- Law, Flammer, Edwards Sean Patrick sa had fallen out of his bed and was con- Austin, TX, Esq., Plaintiff-Appellee. for vulsing. A correctional officer found Hino- josa on the floor of his cell. He was Anastasiadis, Demetri Assistant Attor- unresponsive, and his skin was hot to the General, ney Attorney Office of the Gener- touch. supervisor The officer’s called for al, Defendants-Appellants. ambulance, but pro- Elizabeth Claire O’Kane Compa, New nounced twenty dead minutes after it ar- Orleans, LA, for Amicus Curiae. autopsy rived. An concluded that he “was

vulnerable to the effects of environmental hyperthermia due to pre-existing natural disease, likely suffered a seizure fol- REAVLEY, JONES, Before lowed fatal arrhythmia.” cardiac ELROD, Judges. Circuit Hinojosa’s heir, mother and sole Ramo- Hinojosa, na sued numerous offi- ELROD,

JENNIFER WALKER TDCJ, cials and employees, the the Uni- Judge: Circuit versity of Texas Medical Branch interlocutory appeal, Brad Liv- (“UTMB”), UTMB, and an official of alleg- Thaler, ingston, Rick and William Ste- ing responsible were for her “Defendants”) phens (collectively challenge son’s death.2 She asserted claims under *5 an order of the district court that deferred § 42 U.S.C. the Americans with Dis- ruling on their motion to dismiss on the (“ADA”) abilities Act of 1990 and the ADA qualified immunity basis of and ordered Act, 12131 et § Amendments 42 U.S.C. discovery. limited Because the district seq., and the Rehabilitation Act of court correctly concluded that the com- § Only § U.S.C. 794. the 1983 claim is at plaint was sufficient and that further factu- appeal. Hinojosa’s issue in this mother development al was needed to rule on De- § premised her 1983 claim on an asserted defense, fendants’ immunity violation, alleging Amendment because discovery the district in conditions which Defendants housed narrowly court ordered was tailored to the Hinojosa posed a substantial risk of seri- defense, facts needed to rule we harm, ous and that Defendants acted with jurisdiction lack appeal over this and dis- Hinojosa’s deliberate indifference toward miss. safety

health and needs. I. complaint alleges The that at the time of death, Hinojosa his forty-four years August On Hinojosa Albert obese, old and and he complications hyper- died of from suffered from heatstroke tension, diabetes, while he depression, was incarcerated at the Garza and schizo- Unit of Department phrenia West the Texas of that made him suscep- —conditions (“TDCJ”).1 Criminal Justice Shortly after tible to heat-related According illnesses. purposes appeal, 1. For Hinojosa passed we take the away during Ramona complaint’s allegations factual pendency appeal, as true and of this and Rene Arturo light view them the most to the grandson favorable and Albert’s —Ramona's plaintiff. Atteberry Hosp., nephew v. Nocona Gen. pursuing repre- now this suit as —is (5th Cir.2005). sentative of Ramona's estate. where or recreate in environments complaint, Hinojosa took various work 95°F or ailments, air apparent temperature a common the for his medications housing as- they render do not address they higher, is that of which side-effect addition, The for such inmates. signments to the heat. more vulnerable patients inmates some- that, according complaint, to the alleges reflected complaint as to receive then- up days wait to ten knew times policies, TDCJ Defendants after then- af- examination put physical intake conditions and medications these physi- custody. to TDCJ These risk of transfer prisoners an increased fected Indeed, to detect according provide opportunity first illness. cals heat-related medical Hinojosa’s treat inmates’ heat-sensitive from 2007 until complaint, alleges and the death, problems, complaint had died from thirteen other men newly not allow arrived inmates prisons. in TDCJ TDCJ will heat-related causes they have received allegedly suf- labor outdoors until Many individuals is true for pre- physical. been an intake But what from had fered ailments—and Hinojosa’s. housing, complaint not true for work is medications—similar scribed be- Moreover, According complaint, complaint alleges that like asserts. to the intake physicals, Hi- receive their many prisoners, the other deceased fore out- may not labor recently newly moved from arrived inmates nojosa had been temperatures, high he died but county jail,3 and doors climate-controlled temper- high housed in indoor shortly after his arrival at a non-air-condi- nonetheless facility along before he atures with the rest inmate TDCJ transfer tioned high population. time to had much acclimatize new environment. despite then- alleges policies complaint alleges that TDCJ heat-related prior awareness numerous acknowledged the of acclimati- importance fatalities, no Defendants took corrective heatstroke, but zation to reduce risk of al- Under that Defendants action. any housing assign- did TDCJ implemented and could have legedly newly inmates to policy ment arrived changed, housing no accommodation was *6 help them acclimatize. newly inmates or made for arrived inmates although heat-sensitive medical conditions. According complaint, with and Ste- asserts that Thaler parts complaint of the West Unit The certain Garza of heat- routinely reports to conditioning, portions phens used reviewed air those not, injuries regularly deaths and inmates do and the Unit’s win- house related meetings al- those complaint discussed incidents dows are sealed shut. to the com- deputies. According inside their leges that summer however, 90°F, changes no routinely plaint, and even made exceed Unit accommodations, failed to ensure alleges inmates’ complaint specifically 100°F. The died, timely physi- intake day that inmates received before 100°F, cals, any other implement and failed surpassed at the temperature Unit Livingston twenty-seven twenty-eight procedures. also protective action, death, alleges, even temperature complaint his took no days preceding though approved cooling the com- he measures According 95°F. rose above housing pigs raises for that TDCJ while TDCJ dictate barns plaint, alleges also slaughter. complaint inmates with heat-sensitive conditions law, and 85°F. See 37 Tex. Admin. Code By temperature of Texas 65°F indoor 259.160, kept §§ 260.154. county jails generally between must Livingston part took the decision not to leading stances to his death.” Defendants employ medical staff at then the Garza West initiated this interlocutory appeal. hours, during night Unit and that all three III.

supervisory responsible Defendants were alleged for an adequate training lack of The parties disagree over wheth jurisdiction that correctional officers er we have received. to review the dis trict court’s order. Under 28 U.S.C. 1291, § jurisdiction we have “fi review II. nal decisions” of the district courts in our circuit. Generally, this class of decisions § Defendants moved to dismiss the “does not discovery include orders.” against claim them on the basis of LeBlanc, Backe v. 691 F.3d 647-48 immunity. They argued as the top (5th Cir.2012). However, the Supreme security TDCJ,4 three administrators of interpreted § Court has 1291 to include they were not personally responsible for— grant of authority to review “small class” personally and did not participate in— of collateral traditionally orders considered Hinojosa’s decisions regarding housing or non-final. See Cohen v. Indus. Beneficial needs, medical did not violate 541, 545-47, Loan Corp., 337 U.S. 69 S.Ct. clearly established law. (1949). 93 L.Ed. 1528 Under this hearing argument motion, After on the doctrine, collateral jurisdic order we have orally the district court denied it from the § tion under 1291 to entertain appeals bench. In its later-issued written order from decisions that conclusively “[1] deter explaining its reasoning, the district court mine the disputed question, [2] resolve an held that alleged facts important completely separate issue from which, true, if permit would the inference action, the merits of the and [3] [are] the defendants were liable for the effectively unreviewable on appeal from a alleged harm and would defeat the quali- judgment.” Caremark, Inc., final Texas v. immunity However, fied defense. (5th dis- Cir.2009) (altera 584 F.3d 657-58 trict court determined that further factual Hallock, in original) (quoting tions Will v. development necessary for it to rule U.S. “[tjhere defense, (2006)). because remain L.Ed.2d 836 A district court’s

significant questions to be answered as to order denying qualified immunity is one the details of the Melson, TDCJ such Zapata Defendants’ order. actions, knowledge, poli- Cir.2014); Backe, omissions 691 F.3d at and/or regards cies in to TDCJ operations deferring 648. So too is an order Therefore, in times of extreme heat.” district qualified immunity ruling court’s *7 district court ruling quali- deferred on the providing and for discovery limited if the immunity fied defense and ordered discov- order comply precedent, fails to with our ery personal “limited to the knowledge and because of the most “[o]ne salient benefits personal conduct of each qualified Defendant as it immunity protection is from Hinojosa Backe, relates Albert pretrial discovery.” the circum- 691 F.3d at complaint, 4. As detailed in the at the complaint time of tions Division. The asserts that in death, Hinojosa’s Thaler, Livingston capacities, Livingston, Brad was the their and Ste- TDCJ, executive director of phens authority Rick Thaler was exercised administrative over the director of TDCJ's Correctional employees working Institu- all TDCJ in TDCJ institu- Division, tions, Stephens tions including working William was the those in the Garza deputy director of the Correctional Institu- West Unit. 664 1987)). must be discovery order Such a however, complies an order If, such

648. only those “narrowly tailored to uncover jurisdiction to we lack precedent, our 485; immunity at on the 750 F.3d needed to rule Zapata, it. facts review Boulos, Backe, 834 (quoting 691 F.3d 648. Id. Lion claim.” 507-08). may review the “[W]e F.2d Thus, whether we to determine doctrine collateral order under the order interlocutory this over jurisdiction find first that fails to a district court when the whether we must appeal, determine a de- overcomes complaint plaintiffs the our complied with court’s district order defense, immunity when qualified fendant’s issuing “[T]his such orders. precedent qualified rule on a refuses the court procedure careful a court has established defense, dis- the court’s immunity or when may defer its a district court under which ‘nar- requisite the covery order exceeds ruling if further factual immunity qualified (internal cita- scope.” Id. rowly tailored’ the necessary to ascertain development is omitted); Zapata, see also tions Backe, 691 availability of that defense.” at 485. First, court must the district at 648. F.3d pleadings plaintiffs “that the determine true, which, overcome if would

assert facts IV. immunity.” Id. qualified defense of

the A. Emp’t Miss. State

(quoting Wicks v. (5th Cir.1995)). Servs., 41 F.3d 994 complaint the first ask whether We “Thus, overcome seeking to a true, that, permit if would pleads facts plead specific must immunity qualified are liable under that Defendants inference court to draw the that allow the facts both Amendment violation Eighth § for an is that the defendant reasonable inference immu- qualified their overcome and would that alleged he has for the harm liable that it does. nity defense. We conclude immunity defense with qualified a defeat reviewing a specificity.” Id. When equal i. standard, that complaint meets Amendment Eighth immu may its court defer district prohibits States Constitution United discovery limited if nity ruling and order punish unusual infliction of “cruel and ‘unable to rule on “the court remains This VIII. ments.” U.S. Const.amend. clarifica further immunity defense without ” applicable to the States made prohibition, (quoting Lion Bou of the facts.’ Id. tion Amendment,5 see through the Fourteenth Wilson, Cir. los v. 666-67, Robinson, brief, 370 U.S. argue States. See Defendants In their initial prisoner by (holding a the Fourteenth claim conditions S.Ct. ‘‘[a] governed convicted of crime Amendment's makes the Amendment Amendment,” Eighth and not the Fourteenth against the States and guarantee applicable Complaint does not claim "[b]ecause challenged in concluding law state detainee, pre-trial was a punish- and unusual case "inflicts cruel should have claim Fourteenth Amendment Amend- Fourteenth in violation ment Defendants misunderstand been dismissed.” added); ”) (emphasis also McDonald see ment of the Fourteenth complaint’s invocation Chicago, City U.S. invokes Four- Amendment. The (2010) (noting L.Ed.2d 894 S.Ct. *8 by simply it is because teenth Amendment incorporated that Court has "held that the provision alone— provision —and all to be en- Rights protections 'are Bill of ap- guarantee Eighth that the Amendment’s against under the Fourteenth the States forced States; Eighth Amend- plies against the according the same standards Amendment apply force to the of its own ment does

665 660, (internal California, Robinson v. 370 omitted). U.S. 666- 1970 citation For in- 67, 1417, (1962), stance, 8 L.Ed.2d 758 “if an Eighth plaintiff Amendment “does not mandate prisons, comfortable presents evidence showing that a substan- permit neither does it but inhumane ones.” tial risk of inmate attacks was longstand- LeBlanc, (5th 584, v. Ball 792 F.3d 592 ing, pervasive, well-documented, or ex- Cir.2015) Brennan, (quoting v. Farmer 511 pressly noted prison officials in the 825, 832, 1970, 114 U.S. S.Ct. 128 L.Ed.2d past, and the suggest circumstances (1994)). plead To an Eighth 811 Amend- the defendant-official being sued had been ment violation based conditions of exposed to information concerning the risk confinement, plaintiff an inmate’s a must and thus it, ‘must have known’ about then allege “pos[e] conditions that a substantial such evidence could be sufficient permit Farmer, risk of serious harm.” 511 U.S. a trier of fact to find the defendant- 834, 114 S.Ct. 1970. The must official had knowledge actual of the risk.” allege also that the prison (internal defendant offi- 842-43, Id. at 114 S.Ct. 1970 quo- cials were deliberately omitted). indifferent tation marks safety. inmate’s health or Id. This re- We have held that exposing an inmate to quires allegation more than an of mere extreme cell temperatures can constitute negligence, but less an allegation than See, cruel and punishment. unusual e.g., knowledge. 835-36, purpose Id. at 114 Ball, 592; Cook, 792 F.3d at Gates v. Rather, 1970. a prison S.Ct. official acts (5th 323, Cir.2004); 339-40 Blackmon deliberate indifference when he Garza, (5th 484 Fed.Appx. Cir. disregards “knows of and an excessive risk 2012); Sullivan, see also Smith v. inmate safety; health or the official Cir.1977) (noting that both must be aware from of facts which Eighth Amendment is implicated by “ex the inference could be drawn that a sub- tremes of temperature that likely to be exists, risk stantial of serious harm and he health”). injurious Gates, to inmates’ must also draw the inference.” Id. at we injunction affirmed an requiring state 114 S.Ct. 1970. prison provide water, fans, officials to ice

Whether a is risk substantial and daily showers the heat index when the threatened harm represents serious 90°F or above. 376 F.3d at 339-40. The test; objective prison whether officials evidence in Gates showed that “summer consciously disregarded repre the risk ... average[d] in the nine Ball, subjective a sents one. F.3d at ties with high humidity,” ventilation meas Furthermore, a of “[w]hether ures were inadequate to afford relief from requisite ficial had the knowledge heat, of a probability “[t]he of heat-related question substantial risk is a extreme,” of fact sub illness [was] and inmates taking ject to demonstration in the usual ways, certain especially medications were suscep including inference from circumstantial ev tible to the heat. Id. 334. In holding idence, and a may factfinder conclude that that the district had properly court identi official knew a violation, substantial risk fied an Amendment we very from the fact that the risk was obvi expert noted that an had testified that Farmer, ous.” U.S. at S.Ct. “very likely,” heat-related deaths were protect personal rights against those contrary fed- argument, nothing to Defendants' ”) added) (emphasis eral encroachment’ suggests or in Plaintiff’s briefs (quoting Malloy Hogan, bring U.S. pre-trial intention to detention (1964)). Indeed, S.Ct. 12 L.Ed.2d 653 conditions-of-confinement claim. *9 666 ii. indifference deliberate finding of

that a and obvi- open on the justified “based alleges an Here, complaint the the and these conditions nature of ous The com Amendment violation. Eighth complained of had that inmates evidence subjected alleges that Defendants plaint illness.” Id. symptoms of heat-related in heat conditions dangerous to 339-40. serious risk that disregard of the conscious who, Hi like prisoners posed heat the Blackmon, we held Similarly, in medical con from certain nojosa, suffered to were entitled officials that medications, and had ditions, took certain the of law where as a matter judgment air-condi from transferred recently been temperatures extreme evidence showed facili jails to non-climate-controlled tioned partic inmate was plaintiff facility, the the a substantial posing conditions to ties. As injury to heat-related ularly susceptible harm, alleges complaint serious risk of medication, and age and because of his Unit Garza West temperatures danger aware prison officials were 100°F, 90°F, and even routinely exceeded remedial inadequate arguably took but subjected in Defendants’ and that Fed.Appx. at 870-73. measures. dangerous temperatures. to these mates Ball, held that an we recently, Most in his cell in Hinojosa died It asserts meas heat-reduction requiring injunction complications to morning early due Amend Eighth an supported by ures was heatstroke, temp that the and following testified expert ment violation where during the 100°F had risen above erature particularly inmates were alleges also complaint day. previous of their to heat because susceptible “grossly inade provided that inmates treatments, and the medical conditions cope to with the of water” amounts quate monitoring during a showed evidence suffice allegations plainly These heat. facility index the heat period, constituting a substan forth conditions set 107.79°F, with ranged from 81.5°F to inmates with harm tial of serious risk ranging from 78.26°F prescriptions like conditions medical officials at 596. Prison 92.66°F. 594; Ball, F.3d at Hinojosa’s. See even Amendment violated had Blackmon, 339-40; Gates, at the no inmate they argued that though at 870-71. Fed.Appx. a heat- facility ever suffered subject “ha[d] Moreover, its claim that De- support “medi plaintiffs’ incident” and related risk the heat were aware of fendants of heat-relat signs no records showfed] cal it, because, consciously disregarded This is at 593. illness.” Id. ed Hinojosa’s until that from 2007 alleges prison condi unconstitutional prove “[t]o had died from death, thirteen other men tions, not show death inmates need prisons in TDCJ under causes They heat-related already occurred. injury serious has circumstances, pre- had TDCJ similar there is only show that substantial need complaining by inmates (internal viously been sued quota Id. serious harm.” risk of deaths thirteen omitted). Ten of the heat.6 marks and citation tion Kukua, F.Supp.2d 398 v. following Blackmon heat- complaint refers to the (S.D.Tex.2010), remanded sub nom. rev’d and v. brought inmates: cases Ruiz condition Garza, (5th Fed.Appx. 866 (S.D.Tex.1999), Johnson, v. Blackmon F.Supp.2d 855 lawsuit, Cir.2012). pending to a It also refers United nom. v. sub rev'd and remanded States, Ruiz Livingston, No. 3:12-cv-2037 Cir.2001); (5th Valigura McCollum 243 F.3d 941 Cir.2008); (N.D.Tex.), from one which arose Mendoza, Fed.Appx. 232 *10 year occurred Hinojo- before merely inferred from the obviousness of Furthermore, sa’s. complaint risk, alleges such as prior when incidents are that Defendants took despite no action or pervasive well-documented and circum- deaths, their knowledge of these of the suggest stances that the defendant was facilities, extreme in TDCJ them); Ball, aware also F.3d at cf. vulnerability of recently transferred (holding 594-95 that the defendants were inmates with conditions and medications aware of the posed by risk high tempera- Hinojosa’s, similar to and of impor- though tures even argued they no inmate timely tance of physicals. intake It also had ever suffered a heat-related incident alleges that TDCJ subject themselves rec- facility). event, In any ognized the risk of heat to inmates open like and obvious dangerous- nature of the Hinojosa, provided ly Defendants train- hot conditions support would also (albeit ing inadequate training) regarding inference of deliberate indifference. See temperatures, extreme Gates, suggesting their 376 F.3d at 340. awareness of the risk. Defendants argue that the com complaint specifically asserts that fails plaint plead deliberate indifference Stephens Thaler and routinely reviewed it allege because does not they were reports of injuries deaths, heat-related Hinojosa’s aware of specific medical histo discussing them in meetings with their ry However, and needs. their lack of deputies. According complaint, knowledge Hinojosa’s individual suscep Thaler Stephens while maintain that tibility to dangers heat-related cannot de regional remind directors and war- feat an Eighth Amendment claim. The dens to take heat-safety precautions, Thal- complaint alleges that Defendants were Stephens er and do no thing. fact such aware the risk to recently transferred also Livingston asserts that inmates with conditions and medications personally approved cooling measures to Hinojosa’s like and yet took no action.

protect the swine TDCJ raises for Prison officials escape cannot liability in a slaughter, and argues Plaintiff conditions-of-confinement case like this allegation Livingston shows that that, arguing one they allegedly while aware of the heat risk to inmates. The consciously were aware of and disregarded complaint also a describes letter that a substantial risk of serious harm to a representative state to Livingston, sent ex- inmates, discrete class of vulnerable pressing concern about the high tempera- not particular were aware that the inmate asking tures and that TDCJ preven- take belonged involved the case to that class. tative measures. Farmer, 511 U.S. at allegations, true, (in

These if would estab- a case alleging prison conditions lish that Defendants violence, were “aware of facts that created a risk of holding that from which the inference could be drawn “it does not matter whether risk comes substantial risk of harm serious from a single sources, source multiple or exists, and ... also dr[ew] inference.” more than it pris matters whether a Farmer, 1970; U.S. 114 S.Ct. oner faces an risk of attack excessive 842-43, (ob- also id. at see 114 S.Ct. 1970 personal reasons him because all serving that deliberate indifference can be prisoners in his situation such a face deaths complaint. described in present against its one have been TDCJ filed order, Defendants, them, the district court took notice that addi- and it one of cited Webbv. wrongful

tional (E.D.Tex.). death Livingston, lawsuits similar to the No. 6:13-cv-711 Cir.1994) (en banc); Thomp (5th also see added);

risk”) id. (emphasis Steele, Cir. son (observing that where S.Ct. 1983) proposition for the (citing Monell obviously “it would widespread, violence “ a cause give § 1983 does the officials liability that irrelevant of subor conduct on the who action based precisely beforehand not guess could *11 “[personal dinates,” observing that whom”); v. McKin Helling attack would 2475, of element 25, 33, 125 is an essential 113 S.Ct. involvement ney, 509 U.S. action”). Indeed, the (1993) Eighth (noting that the of rights civil cause 22 L.Ed.2d § lia squarely implicated held Supreme is Court Amendment Ashcroft —and super against offi § 1983 claims may triggered that bility Iqbal be v. —when merely to infec exposed premised to be be visory inmates cannot cials allow officials ac disease, though possible of subordinates’ knowledge “even their upon tious 1937, of those ex affect all 129 S.Ct. might not infection tions. 556 U.S. (2009). Instead, Furthermore, assuming ar- under even posed”). 173 L.Ed.2d official, Hi- his ignorance § Defendants’ Government guendo that “each relevant, only be liable for history notwithstanding, is medical could nojosa’s her title misconduct.” Id. alleges dangerous conditions complaint his or her own uncon to be previously held that we complaint. misread the But Defendants populations. inmate general for stitutional to hold De- not complaint does seek Gates, F.3d at 339-40. the actions vicariously liable for fendants then, adequately sum, complaint Rather, to it seeks their subordinates. violation Eighth Amendment alleges an their own actions hold them liable confine- Hinojosa’s conditions based failing correct —in- to promulgating —and Nevertheless, contend Defendants ment. exposed that housing policies take and allege properly does not complaint him to like other inmates Hinojosa and consti- asserted for the responsibility their adequate temperatures without extreme § 1983 does not because tutional violation offi- supervisory “A remedial measures. They liability. contemplate supervisory im- ... if ... he liable may be held cial liable for cannot held argue policies unconstitutional plements personnel failures of medical alleged inju- constitutional in the causally result be- officers corrections and subordinate 440, 446 Epps, ry.” Porter participate personally did not cause Cir.2011) (internal marks quotation those failures. omitted). Defendants the extent To (cid:127) hand in the they had no argue appear argu- of Defendants’ premise housing poli- intake formation of In Monell undoubtedly correct. ment they raise complaint, in the Services, the Su cies described Social Department for resolu- dispute inappropriate a factual against lo that claims held preme Court The com- on a dismiss. theory tion motion premised on governments cal Defendants alleges that specifically cog plaint liability are not superior respondeat power and had the promulgated 691- § 1983. U.S. nizable under caused allegedly (1978). change 56 L.Ed.2d Moreover, it is while Hinojosa’s Monell, death. “we have held that Relying on allega- complaint contains true that vi may be found officials not supervisory of Defen- the conduct regarding tions of their for the cariously liable actions subordinates, allegations seek Tay dants’ § Doe v. under 1983.” subordinates against liability direct only to establish Dist., Indep. Sch. lor those subordinates who were also ly named right established to an air-conditioned complaint, as defendants in the cell or not vicari- to around-the-clock medical care. liability against Thaler, argument ous Defendants’ Livingston, again misreads the Stephens. right and confuses remedy.

While the complaint does allege that TDCJ iii. cells are not air-conditioned and that employ TDCJ fails to medical during staff The complaint alleges facts hours, nighttime it does not claim that the that, true, only if would establish De Eighth requires Amendment such accom- liability fendants’ for an Amend Rather, modations. right that it as- violation, ment but also would be sufficient right serts is the to be free exposure from qualified overcome a immunity defense. to extremely dangerous “A public official is entitled to *12 adequate without remedial measures. The immunity unless the demonstrates complaint’s description of the lack of reme- (1) that the defendant violated the plain dial measures does not purport to be an (2) tiffs rights constitutional the de exhaustive list the Eighth Amendment’s fendant’s objectively actions were unrea requirements.' basic It is simply descrip- a in light clearly sonable established law tion of ways several in which Defendants Porter, at the time of the violation.” risk, could have addressed the but instead at 445. “A Government official’scon chose not to right do so. The that it clearly when, duct violates established law asserts, however, is the well-established at the conduct, time of the challenged Eighth right Amendment not to be sub- right contours of sufficiently ‘[t]he [a] [are] jected to extremely dangerous tempera- every clear’ that ‘reasonable official would adequate tures without ameliorative meas- have understood doing that what he is ures. ” right.’ al-Kidd, violates that Ashcroft Defendants also contend that the Su 2074, 2083, 563 U.S. 131 S.Ct. preme Court’s recent Taylor decision in (2011) L.Ed.2d 1149 (quoting Anderson v. — Barkes, U.S. -, 135 S.Ct. Creighton, 483 U.S. (2015), L.Ed.2d 78 qualified bolsters their (1987)). 97 L.Ed.2d 523 prece Our immunity argument. It does not. In clearly dent establishes that Eighth the Barkes, survivors of an inmate who com guarantees Amendment right inmates a mitted brought against, suicide suit inter be free from exposure to extremely dan alia, the commissioner of the Delaware gerous temperatures adequate without re Department of Corrections and the institu See, Gates, medial e.g., measures. tion’s warden. Id. the When 339-40; Blackmon, F.3d at Fed.Appx. inmate had arrived at facility, the a nurse 869; Smith, see also 553 F.2d at 381. administered an intake mental health eval In light precedent, of this a official uation, which only revealed two out of he, unreasonably acts directly when either possible seventeen suicide risk factors. Id. or through policy, subjects his an inmate Following protocol, established the nurse to extremely dangerous temperatures gave the inmate a routine referral to men remedial, without adequate measures in tal health services but did not any activate disregard conscious of the risk posed special suicide-prevention measures. Id. those temperatures. The inmate placed was alone in a cell and however, argue, Defendants that hanged day. himself the next Id. complaint cannot qualified surmount plaintiffs claimed that the commissioner immunity hurdle because there is no clear- and warden violated the inmate’s remedies —or reme- afford these he must failing supervise “by right

Amendment satisfactorily address them—to dies like contractor private monitor and fatali- illnesses of heat-related including risk the medical provided treatment — alleges that However, ties. Institution.” screening the intake —at drinking enough provide not TDCJ did the de- held that Court Supreme Id. during times of fans personal or immuni- water qualified were entitled fendants that was heat, that the water extreme “even Court no decision ty because The com- only lukewarm. provided screening prevention suicide discusses that Defendants knew alleges also plaint own case Third Circuit’s protocols,” par- Hinojosa were such as prisoners right, a recognize such clearly law did heat, and that ticularly vulnerable “suggest- generally had other circuits housing policies intake and through Id. did not exist.” right that such ed failed to en- they promulgated, found, if even sum, the Court 2044-45. received prisoners that such existed, prec- sure “no shortcomings alleged true, this would de- If relief. meaningful made ... would have books edent on the defense, immunity because feat a oversee- were petitioners clear subject- that Defendants it establish would violated Constitu- system ing with- Hinojosa to extreme ed at 2045. tion.” Id. measures, in viola- remedial adequate out contrast, Hinojosa’s assuming Here, by *13 clearly law. circuit’s established our tion of true, put precedent our allegations “over- were notice on Defendants B. that violated Constitu- seeing system a that the com Having determined very clear has made circuit Id. Our tion.” true, if would allegations, factual plaint’s right, a under inmates have liability for an Defendants’ Amendment, subjected to establish not to be Eighth and over Amendment violation Eighth adequate without extreme defense, immunity we qualified have come a measures, Defendants remedial clarification of whether further authority. next ask contrary us to not alerted the district necessary for 339-40; the facts Gates, at see See, e.g., immunity Blackmon, the qualified rule on 381; court to Smith, F.2d at also that it was. easily conclude We have not defense. we 869. While Fed.Appx. fist of give exhaustive occasion had well-pleaded a com- reviewing When measures, we acceptable remedial motion to dismiss a plaint and defendant’s fans, water, ice of provision that the held immunity, dis- qualified on basis Gates, can suffice. See daily showers immuni- may qualified defer trict court its Ball, 792 F.3d 339-40; also see 376 F.3d discovery when and order limited ty ruling of full short remedies (approving at 599 on the to rule remains ‘unable “the court as the diversion air-conditioning such further clarifica- without immunity defense ” inmate areas staff into air from cool Backe, at 648 facts.’ tion access condi- areas, air allowing inmates 507). Boulos, F.2d at (quoting Lion times, pro- tioning during specified may words, court elect a district In other water, showers, cold daily ice of cool vision “when the approach the defer-and-discover containers, and individual ice personal immunity turns least claim defendant’s fans). that must a factual question” partially ruling can issue. before circuit be answered in our official A reasonable Boulos, F.2d at 507. heat, Lion of extreme during times knows Here, the district court held that it was questions factual what Defen- unable to rule on qualified knew, Defendants’ it, dants when knew immunity claim develop- because factual they investigated whether and considered ment “knowledge, was needed as to their possible measures, remedial are undoubt- actions, omissions in re- and/or edly necessary to answer before determin- gards prison operations to TDCJ in times ing whether Defendants reasonably acted particular, of extreme heat.” In the dis- light of clearly established law. Of trict court that: concluded course, above, as detailed Defendants’ necessary

[I]t to know when and how knowledge is central to the deliberate in- the TDCJ Defendants learned about difference element of Plaintiffs deaths, specific prisoner including the However, Amendment claim. their knowl- death of Albert Hinojosa, serious and/or edge highly is also relevant qualified injury heat; related to extreme whether immunity, because it bears heavily on the the TDCJ Defendants ordered that con- reasonableness of their actions. study ditions be monitored or a conduct- recently As we observed in a similar regarding ed extreme heat and inmate interlocutory appeal from a district court’s

safety; familiarity their with Fifth Cir- order, discovery immunity in- cuit case addressing dangers law quiry requires the district court to “evalu- heat within the context of the Eighth ate whether [the defendants] acted with Amendment and whether or not policies deliberate indifference subjectively dis- implemented were changed accor- regarding risk, a known and whether direction; dance with such whether the actions objectively [their] were reasonable performed TDCJ has any studies into despite the alleged deliberate indiffer- the costs of reducing tempera- extreme ence.” v. Livingston, Webb 618 Fed.Appx. tures within the dorms via more efficient Cir.2015) (in- (unpublished) systems, engineering modifications, or omitted) ternal citation (holding that a dis- facility other upgrades; whether *14 trict court’s defer-and-discover order in a personally TDCJ Defendants consulted wrongful similar against with death case Liv- UTMB officials in regards to the Thaler, ingston, transportation Stephens complied and housing and of at-risk in- months; with during precedent issuing orders, mates our for summer such whether the dismissing jurisdiction). TDCJ Defendants and for lack of consid- Furthermore, ered that at-risk inmates be “subjective maintained Defendants’ in air-conditioned facilities when in knowledge question fact, is a of which this transport; and whether the TDCJ De- recognized court has peculiarly is within copies notes, fendants received of memo- (in- knowledge possession.” [their] and Id. randa, emails, or correspondence other omitted); quotation ternal marks see also from concerning TDCJ wardens heat- (“Whether Gates, 376 F.3d at 333 related issues at any their units and official requisite had the knowledge of a responses administrative thereto. question fact....”); substantial risk is a of Wood, (5th v. The district court Schultea considered these factual Cir.1995) issues to “particularly important (recognizing when establish- evaluating ment of prong qualified immunity the second of quali- “depend[s] on immunity fied peculiarly test —the facts within the knowledge reasonableness of the TDCJ Defendants’ actions in control of light (quoting the defendant” Gomez clearly Toledo, established constitutional v. right 446 U.S. (1980))). temperatures.” be free from extreme 64 L.Ed.2d 572 discovery court’s that the district conclude requires immunity defense qualified tailored. appropriately whether order was determine court to

the district time of reasonably at the acted Defendants discov court ordered The district violation, and constitutional alleged knowledge and the personal “limited to ery when, complicated determination “[t]his as it each Defendant conduct of personal stan- here, indifference the deliberate as the circum Hinojosa and Albert relates to second with the reconciled must be dard The district death.” leading his stances stan- reasonableness objective prong’s that: court elaborated Webb, at 210. The Fed.Appx. dard.” different analysis must be reasonableness Defendants’ discovery may include Such analysis, from the deliberate-indifference temperatures knowledge of extreme “[o]therwise, claim of a successful because Unit, including knowl- the Garza West would immunity in this context qualified pris- any prisoner complaints edge of to demonstrate require defendants in the temperature officials about merits, rendering thus on the they prevail May the months or cells dorms doctrine.” immunity empty qualified years of for the September through Corinth, 135 City (quoting Hare Id. may in- Plaintiff and 2012. Cir.1998)). (5th light “In 320, 328 personal Defendant’s as to each quire have observed complexities, we regards in any, if knowledge, im- particularly facts ... ‘[additional pre-existing heat on effects of extreme evaluating [reasonable- portant when dia- hypertension, conditions of medical immunity qualified prong ness] betes, schizophrenia, depression, ” Hubert, Morgan (quoting Id. test.’ are familiar Defendants whether Cir.2009)). That Fed.Appx. prescribed to generally the medications court The district in this holds true case. conditions, De- whether treat such that factual determining not err did knowledge training or fendants on Defen- to rule development was needed and extreme concerning medications immunity defense. qualified dants’ may inquire as to Plaintiff heat. place procedures C. sys- as TDCJ Unit, as well West Garza estab foregoing discussion Our adopted procedures, policies or tem-wide empow court lishes that district prison operations place address immunity ruling to defer its ered are considered to when However, the order. discovery and issue heat. constitute extreme n discovery is criti ordered breadth *15 discovery that this Defendants contend immunity is im Qualified cally important. three- it relates to a is overbroad because but also only judgment, munity not from system-wide encompasses period, year bene suit; the most salient “[o]ne from rather than and conditions policies TDCJ protection immunity is qualified fits Unit, Garza West only at the those Backe, discovery.” pretrial from by without complaints inmates covers determine must We therefore at 648. De- Hinojosa’s. like conditions medical discovery that the district whether discovery or- on the also fendants seize “narrowly tailored was court ordered development factual der’s observation to rule on needed only those facts uncover “whether TDCJ necessary as to (quoting Lion Id. immunity claim.” that at-risk in- 507-08). considered Defendants Boulos, this While 834 F.2d at in air-conditioned fa- maintained mates be question, we a somewhat close presents cilities in transport,” when in- apparently mates are most vulnerable when moved terpreting this line to discovery authorize from air-conditioned county jails into non- as to inmate-transporta- whether TDCJ facilities, climate-controlled transfer like equipped tion vehicles are with air condi- Unit, the Garza West because temp- of the tioning. Defendants also dismiss as “ir- erature change and lack of opportunity to general relevant” their knowledge about acclimatize. alongside Viewed the nature heat, they whether conducted stud- of the complaint’s allegations, Defendants’ officials, ies or consulted with UTMB strained reading district court’s use policies TDCJ regarding operations dur- of the words “transportation” and “trans- ing temperatures, extreme and how port” when is mistaken. deaths, learned of other inmate their We also disagree with Defendants’ as- familiarity precedent, with our their re- sertion that much of the discovery ordered ceipt correspondence from wardens re- was “irrelevant.” sets out issues, garding heat-related and whether Amendment claim alleging implemented were or changed. deliberate indifference to dangerous heat Finally, Defendants contend that in conditions TDCJ facilities. Assuming provided

have already “extensive discov- that the complaint’s allegations true, ery” cases, in similar making other be entitled to immunity, Defen- district discovery court’s order unneces- dants must either show that they were not sary. deliberately indifferent risk, to the heat matter, As a preliminary we do not that their actions were light in reasonable n agree that the district court’s order au- clearly established law. What Defen- thorizes discovery regarding inmate trans- dants knew about heat and its risks portation in TDCJ vehicles. The district (especially for inmates vulnerable court observed that discovery was needed medical Hinojosa’s), conditions like when to determine “whether the TDCJ Defen- and how acquired Defendants such knowl- personally dants consulted with UTMB of- edge, whether investigated Defendants regards ficials in transportation and risk explored possible remedial meas- housing of at-risk inmates during ures, the sum- and whether adopted pol- Defendants months,” mer and “whether the TDCJ De- respond icies to to the heat risk are factual fendants considered that at-risk inmates highly issues relevant to evaluating the be in maintained air-conditioned facilities reasonableness of Defendants’ actions. when in transport.” In making addition, this obser- reject we Defendants’ contention vation, the district court appears provision their discovery extensive used the “transportation” words in other similar cases superfluous renders “transport” to mean the movement of in- any discovery in the instant any- case. If mates into a transfer such as facility, thing, direction, this fact in cuts the other Unit, Garza West through then suggesting plaintiff in this case prison system. transportation of in- similarly will able to great discover a mates non-air-conditioned TDCJ vehi- deal of relevant material. Regardless, dis- ease, cles has never been at covery issue for one one is not case any event, and in superfluous district court’s order simply plaintiffs because other *16 never Moreover, discusses matter. in other cases have had an opportunity to complaint specifically alleges that in- conduct it.7 Nothing 7. opinion our in be should construed court discovery to proceedings consolidate prevent to asking Defendants from the district on the light shed of would con- summer argument strongest Defendants’ Likewise, actions. of their and breadth reasonableness discovery order’s cerns the discovery knowledge of heat-relat- timeframe, it allows Defendants’ as while inasmuch place or in policies system-wide procedures and policies TDCJ ed regarding knowledge of facil- transfer and Defendants’ and similar procedures West Unit Garza dur- complaints knowl- inmates’ heat-related than their any probative ities is more in Hinojosa died period. three-year a at other ing practices and policies of edge exception 2012. With of the summer facilities, say discov- cannot we TDCJ to dating back deaths two inmate of Defen- unnecessary. latter is ery to the as 2012, the other death one other and any of heat-related knowledge dants’ during place all took thereof) deaths alleged inmate (or lack procedure policy TDCJ addition, com- In of the summer reason- on acted whether would bear TDCJ on allegations its plaint focuses (or to declining promulgating ably West facilities, the Garza like transfer which the for alleged policies change) the from Unit, typically arrive inmates where responsible. them to hold seeks However, the jails. county air-conditioned court’s for the district holds true The same discovery not permits order district court’s Defendants’ to discover authorization policies of knowledge only into Defendants’ inmates by all complaints knowledge of at the Garza West place procedures by those complaints simply than rather facilities, transfer other similar Unit and vulnerabilities. with medical inmates TDCJ system-wide but also (observing that Gates, at 340 Furthermore, com- while the procedures. pro- are other inmates complaints by prior vulnerability Hinojosa’s focuses plaint indifference). Both of deliberate bative medi- to his conditions due to the heat of De- to reasonableness are relevant allows cations, order the district court’s actions, say cannot and we fendants’ Defendants’ knowl- regarding discovery though discovery regarding former — com- inmates’ heat-related of all edge the latter —is than probative less perhaps in- vulnerable simply not those plaints, unnecessary. Hinojosa. mates like any linger- might To the extent we argu- colorable advance Defendants discov- breadth about the ing doubt broad- discovery items are ment that court order, that the district we ery note ultimately necessary, but we than er discovery will careful to state vacuum, most persuaded. knowledge and personal “limited discovery would period time relevant as it Defendant each conduct of personal summer begin with the seem circum- Hinojosa and the Albert relates to allegedly inmates ten during TDCJ which pro- This to his death.” leading stances How- causes. heat-related from perished boundary for all outer vides certainty that ever, say cannot with we follow, and discovery items specific knowledge into Defendants’ discovery interpreted items should be those sum- dating back complaints inmate re- If in mind. Plaintiff boundary Ac- unnecessary. would be mer of 2010 De- is irrelevant discovery that quests by the summer complaint, cording conduct personal knowledge from fendants’ already died inmates had two the circumstances Hinojosa and regarding Defendants causes. Whether heat-related can seek death, Defendants to his leading during the complaints inmate knew about ed relat- cases. proceedings in other discovery with the *17 plain nity language enforcement of the is entitled to dismissal before the n commencement of prohibits such discovery.”) district court’s order (emphasis added). discovery. The majority opinion here violates

V. clearly law of qualified established immu- above, Because, as set forth nity by holding that under “clearly estab- complies district court’s order with our law, lished” constitutional these officials precedent, interlocutory we this DISMISS may been deliberately indifferent to appeal jurisdiction. want of for We ex the vaguely specified conditions under press opinion how the court no on district which succumbed. This is be- qualified should rule on immu Defendants’ cause allegation there is no that they di- nity defense. rectly participated inway the man- JONES, Judge, Circuit dissenting: agement unit, prison and the No the tragedy prison one doubts of a significant herself makes counter- er’s during life lost to heat stroke a hot vailing allegations policies, about TDCJ here, question Texas summer. The how training, procedures designed ad- ever, prison is whether better high dress the risks of If temperatures. might or procedures theoretically have correct, majority opinion then the prevented Hinojosa’s death in the Garza top might person- TDCJ officials also be Depart West unit of transfer the Texas ally for any injury-causing liable other (“TDCJ”). ment of Criminal Justice As in “condition confinement”—a salmonella qualified immunity, all ques cases service, in a prison outbreak unit’s food tion top is whether the three officials of bus, prison transport the crash a a (“Executive Defendants”), the TDCJ evacuation,1 slip- mishandled hurricane 150,- whose 111 institutions supervise over showers, pery prison at- even heart time, prisoners at a litiga must endure tacks or suicides. tion potential personal liability in dam ages prisoner’s for this death because of implications prevention suicide arguably obvious, some defective except “condition of con majority would be that the Luna, finement.” See v. squarely Mullenix opinion is odds the Su U.S. -, 305, 136 S.Ct. 193 L.Ed.2d 255 preme Taylor Court’s decision in (2015) Barkes, (summarily Fifth reversing Circuit which held as matter law that qualified denial of immunity police offi the top official of the Delaware cer because his conduct did not violate system particular and the war institution’s clearly established law under the circum “clearly den violated no established law” confronted). by stances he I failing would also re “proper implementa oversee verse the district court order denying adequate tion of prevention protocols.” suicide U.S. -, immunity pleadings. - (2015) curiam). Forsyth, Mitchell v. (per U.S. 105 192 L.Ed.2d 78 In so (1985) S.Ct. doing, L.Ed.2d 411 the Court overruled a Third Circuit (“Unless the plaintiffs allegations denying summary judgment. state decision Sta claim clearly of violation of tistically, prisoner established far more deaths are law, a pleading qualified stroke,2 defendant immu- caused suicide than heat States, Spotts 1. Hinojosa's complaint alleges United 613 F.3d 559 that between Cf. Cir.2010). prisoners 2007 and 13 TDCJ died of death). (prior Hinojosa's heat stroke own *18 676 Hinojosa deny portant. that the was transferred generally,

the did not Court unit, transfer which houses Garza West responsible for prisons protection are the 2,000 inmates, August over 2012. well See, Brennan, e.g., Farmer v. of inmates. aged He was middle and obese and was 825, 1970, 511 114 128 L.Ed.2d U.S. S.Ct. for diabe- hypertension, under medication (1994). Yet, Supreme sum- 811 the Court tes, days schizophrenia. and Within two reversed, holding no court marily at this of his arrival non-air conditioned prison- opinion placed beyond has doubt in his facility, prisoner another dorm room implementation the of right proper er’s late at going observed him into convulsions protocols, prevention suicide adequate help. for took night and called medical It any minimum much less “identif[ied] “emergency” about two hours assis- prevention proto- screening procedures arrive, pro- and tance Taylor, cols must use.” 135 that facilities shortly facts nounced dead thereafter. No 2044-45. S.Ct. at pled pris- are about remediation within the Mullenix, lights Taylor, and By the of on unit for heat conditions other than an decisions, Supreme many other Court the gross alleged deficiency drinking of water majority opinion is for two indefensible institutional) (not personal fans. First, it the al- primary reasons. defines Hinojosa’s lawsuit included as defen- Hino- legedly “clearly right” of established only top dants not officials of the three way, josa ambiguous in an overbroad and TDCJ, here, but also the head appellants immunity of the antithesis what Managed Care Pro- of Correctional Qualified immunity is due stands for. Texas gram University of Medical Second, as of these officials a matter law. Branch-Galveston, responsible for which is pleadings it affords credence to inmates, re- medical care of most TDCJ question insufficient under raise a Iqbal3 administrators, gional Rele- wardens. any liability about these officials’ under officials, top majority vant to these pleadings circumstances. The thus failed pleadings from opinion plaintiffs culls 12(b)(6).4 Rule to state a claim under TDCJ “reflect” the of- as follows: knowledge ficials’ with med- prisoners I. BACKGROUND Hinojo- like ical conditions and treatment A synopsis plead- unusually of the relevant susceptible brief sa’s are to excessive ings of majority’s “policies” acknowledge and the characterization heat. TDCJ importance acclimating is im- of inmates “to re- alleged constitutional violations 2013, documents, period pages plus deposi During thousands of of from 2001 to 326 defendants, prisoners custody against rendering died in TDCJ as a result of tions average approximately victory. suicide—an 25 their ultimate a hollow exoneration hand, eight year, discovery the aver- deaths a more than times This far exceeds the case at age year alleged per lengthy number deaths it frame as covers time Qualified (less 3). Margaret entirety than Noonan et system. case ah, of the TDCJ Justice, all, suit, Dep’t Mortality in Local "immunity U.S. immunity, after is from Prisons, just Jails and State 2000-2013—Statisti- beyond liability and extends a defense to (2015), http:// available at litigation.” cal Tables tbl.25 aspects Jac to include all of civil 789, www.bj .gov/content/pub/pdfimljsp0013st.pdf. Procunier, s quez v. Cir.1986); Iqbal, also U.S. see Iqbal, (“The quali 3. U.S. S.Ct. basic thrust Ashcroft (2009). fied-immunity S.Ct. 173 L.Ed.2d 868 doctrine to free officials from litigation, including the concerns of avoidance (internal opinion discovery.”) quotation Additionally, majority disruptive condones omitted). already discovery has amassed marks abusive duce the risk of heatstroke” as trans- firmaries ... at units are adequately county jails from air staffed to fer conditioned handle medical conditions TDCJ, occur, emergencies “but TDCJ did not have hous- and for *19 ing assignment policy newly formulating policies for to arrived ensure that prisoners inmates help adequate care, to acclimatize them receive [sic].” that precisely put, “policies” serious speci- More TDCJ medical needs are not treated (a) newly indifference, with fy arrived inmates with deliberate and that may prisoners subjected heat-sensitive conditions not work danger- are not to engage high temperature recreation in ous a consequence conditions as of conditions, (b) newly and no in- their health arrived issues and medical needs.” ¶ (Id. 31.) may mates labor until at outdoors exam, physical an intake (cid:127) may had which “Murray has any prac- not instituted days. occur up “[T]hey not for to ten are policy concerning tice or safely hous- in high temper- nonetheless housed indoor ing inmates to especially known along of atures with the rest the inmate ¶ (Id. 41.) vulnerable to heat.” at population.” “policies” These defendants’ (cid:127) regional director, “As the wardens no for newly made accommodation arrived respectively, Guterrez and Kennedy inmates or inmates with heat-sensitive directly responsible for training conditions. These medical defendants charged front-line officers timely “failed to ensure that inmates re- (Id. protecting prisoners’ lives.” at physicals, ceived intake and failed to im- ¶ 73.) plement protective procedures.” other (cid:127) ... “[A]fter two men died in Dr. Livingston allegedly part in the “took deci- Murray changes instituted no to employ sion to staff at medical housing practices, UTMB’s intake and hours, night West Unit during Garza and continued to leave pris- vulnerable all ... three supervisory Defendants were oners at risk of heat system- stroke for an lack responsible alleged adequate ¶ 78.) (Id. wide.” training that correctional officers re- (cid:127) “Despite ... ten deaths in Dr. ceived.” Murray and UTMB continued to house majority mentioning omit many oth- vulnerable in extremely inmates hot allegations er plaintiffs complaint temperatures any protections. without liability to proving part directed knowing And he did this that some the medical units, defendants wardens who areas of including TDCJ were situated closer at Garza Unit, to or West. Garza West have air conditioned ¶ (Id. 89.) telling allegations These include: spaces available.” (cid:127) Dr. Murray Owen UTMB’s Cor- According majority to plain- and the

rectional Managed Program Care tiff, this is an Eighth Amendment “condi- medical, “oversees the mental health tions of confinement” case in which liabili- and dental provided prison- services to ty objective is based on an standard of ers ... [in] the Garza West Unit.” constitutionally inhumane condi- ¶ (Pl.’s 13.) Compl. at subjective tions and a standard embodying (cid:127) “Murray responsible ensuring is the defendants’ deliberate indifference to LeBlanc, TDCJ facilities serviced those Ball v. conditions. (5th Cir.2015). provide

UTMB health adequate care such cir- prisoners, cumstances, to unnecessary have ac- it demon- prisoners care, adequate cess to that in- top health strate officials TDCJ either adequate remedial knew without in or about personally participated measures, long of our circuit’s clear- Hinojosa’s imprisonment so as violation high generally of the risk of heat law.” ly knew established prisoners. vulnerable Conse- particularly list majority finally long condone a majority, according quently, inquiries allegedly relevant discovery “in their being are not sued defendants how much these defendants knew about rather for “their supervisory capacity,” but According to in TDCJ. heat-related issues failing in promulgating own actions —and (which discovery has majority, such housing policies to correct—intake and encompassed papers thousands of already Hinojosa and other inmates exposed cases) pending in similar depositions *20 like him to extreme without knowledge, which bears on defendants’ measures.” adequate remedial subjective their relevant to allegedly both qualified immunity de- The defendants’ objective reason- of mind and the states majority rejected by the because fense is liability their ableness of actions ... “right complaint] the asserts [the immunity qualified purposes. Eighth Amendment is the well-established extremely subjected be right not QUALIFIED IMMUNITY II. dangerous temperatures adequate without majority The ameliorative measures.” proceed- panel majority should have have not had “[w]hile concede that we as along ed the same lines the Court list ac- give an occasion to exhaustive Third Taylor Taylor, v. Barkes. In the measures, we have held ceptable remedial immunity by qualified approached Circuit fans, water, ice provision that the had determining plaintiffs first the can See daily showers suffice.” Gates cognizable theory supervisory a alleged Cir.2004).5 Cook, 323, 339-40 liability, Supreme but the Court declined immunity can- majority conclude that Taylor, S.Ct. to consider that issue. pleadings not be awarded on the because Instead, the at 2043. the Court reversed in our circuit reasonable official “[a] per- “an incarcerated lower court because heat, during times of extreme knows that right proper implementation son’s these remedies —or reme- he must afford protocols” is adequate prevention suicide satisfactorily address dies like them —to clearly not a established constitutional fatali- the risk of heat-related illnesses and right. Id. at 2044. majority ties.” The finds sufficient Taylor succinctly expressed the basic immunity allega- qualified overcome immunity: standards for that prison- tions that “Defendants knew government “Qualified immunity shields particularly vul- ers such as were liability un damages officials from civil heat, through nerable and that statutory a or the official violated less policies they pro- housing intake and clearly that was es right constitutional that such mulgated, failed to ensure challenged time of the tablished any meaningful relief.” prisoners received — Howards, U.S. Defendants, Reichle v. short, under these alle- conduct.” 2093, -, 182 L.Ed.2d “subjected Hinojosa to extreme gations Ball, containers, fans). Ball, individual (approving ice 792 F.3d at 5. also however, quali- rejecting cannot be a basis for including of cool air from remedies diversion areas, opinion immunity, was is- allowing fied because inmates to access staff times, years and more after conditioning during plus sued in three specified air water, showers, dispute. personal daily ice events here cool cold (2012). established, clearly “To tions capable clearly are not establish- law.”) sufficiently ing right must be clear that ev- ery un- reasonable official would have This broad definition of “clearly es doing derstood that what he is violates right,” tablished which majority opin (brackets right.” Id. and internal repeats ion three times its discussion of omitted). marks quotation prop- “When qualified immunity again in purporting erly applied, [qualified immunity] pro- to distinguish Taylor, is far more general all but the plainly incompetent tects than precise policy deficiencies those who violate the knowingly law.” charged against the Executive Defendants- al-Kidd, 563 U.S. Ashcroft intake, housing, and medical 2074, 2085, S.Ct. 179 L.Ed.2d 1149 geared to heat inmates with sensitive med (internal (2011) quotation marks omit- only ical conditions. “clearly Yet estab ted). require directly ‘We do not case lished law” that specific is tailored to the point, existing precedent but must facts confronted a defendant suffices to placed statutory or constitu- deprive him of qualified immunity. Bros question beyond tional debate.” Id. at v. Haugen, seau 543 U.S. (2004) S.Ct. 160 L.Ed.2d (per curiam) (“It *21 at 135 S.Ct. citations omit- to (parallel important emphasize is ted). Here, inquiry as in the this Taylor, Executive ‘must be undertaken in light of plainly case, were incompe- specific Defendants neither context of the not as a ”) nor knowing general tent lawbreakers. The al- broad proposition.’ (quoting Katz, actions of leged the Executive Defendants Saucier v. 533 U.S. 2151, 2156, (2001)). not objectively light

were unreasonable in S.Ct. 150 L.Ed.2d 272 clearly of the established law at the time of This a significant overbreadth is error in violation, are entitled to im- majority’s analysis. right The to be munity from suit. free from extreme without majority right adequate The assert the gener- was remedial measures is too “clearly Hinojo- established” at the time of alized to be of to use the Executive death is the to right deciding sa’s “be free from Defendants in what actions dangerous to exposure extremely tempera- or take regarding sys- should should not without adequate policies. qualified tures remedial immunity meas- tem-wide This “right” tautology. ures.” is a Under “highly doctrine is context-sensitive.” formulation, Columbia, this what “reasonable but v. City McClendon of (5th Cir.2002) (en banc) mistaken judgment” could the Executive 332 n. 13 (per curiam). Supreme Defendants have made about what the law And the Court has re- al-Kidd, requires? See at S.Ct. peatedly frequently instructed —re- If this is the “clearly right,” cently exasperation established some —that qualified immunity then would cease to “define clearly courts should not estab- if adequate exist: remedial measures were lished at level high generality.” law a al-Kidd, place, Instead, in there no would be constitutional at 2084. S.Ct. violation; if right reasonable remedial measures must so that it “beyond be defined is being fell short of there adequate, “every would debate” that reasonable official Swanson, liability. Morgan 659 would have understood that what he is (5th Cir.2011) (en banc) 359, 372 doing right.” violates that Id. at 2083 (“Further, (internal omitted) Supreme Court has held quotation (quot- marks generalizations proposi- ing Creighton, and abstract Anderson v. 483 U.S. Eighth Amend- ment 97 L.Ed.2d 523 violation ment.”)

(1987)). guidance Supreme Court’s implications the real world underlines applicabili these cases’ limiting Further immunity analysis. qualified General Defendants’ ty to the Executive offi- limited use principles are of immunity par that all were confined policy make difficult cials who must often particular ticular or sections inmates fact-dependent situations. highly choices Gates, instance, in prisons. was an mistakes are inevit- reasonable Because row; junction Mississippi’s death limited settings, “clearly estab- able in these El placed upon the injunction Smith an protects mistaken requirement lished” Paso This distinction is criti County Jail. judgments. Court has ad Supreme cal because the clearly law a monished that the established Here, not have been clear to it would cases generally should be derived from position in the of the official reasonable facts “squarely govern[ present ]” that his Defendants conduct Executive Brosseau, 201, 125 at ed. 543 U.S. S.Ct. Cer- unlawful in the situation confronted. necessary ap or “beyond 600. Measures that tainly not be debate” it would intake, high temperatures at specific propriate to address to establish failure constitutionally may one not be medical, housing policies than unit other Compare, just one required at another. those in when died would place units, level, analytical the needs of medical result ah Amendment violation. units, high security security units. majority’s charac- low Assuming arguendo issue, extrapolate makes from a has It no sense right all that terization couple fact-dependent prison conditions prec- fairly been established court’s requirements for tempera- in the face of cases the constitutional high edent is that covering its 111 tures, to TDCJ’s statewide adopted measures must be some *22 Sullivan, Indeed, the “relief,” majority opinion units. even Smith v. 553 provide (5th Cir.1977), of 373, concedes there is no “exhaustive list including, 381 circumstances, fans, prior measures” in acceptable extra remedial ice wa- limited Gates, cases, ter, showers,6 only “remedies like them” as leaving at daily 376 F.3d and Edwards, vague baseline. In other v. 51 F.3d constitutional 336. But see Woods Cir.1995) curiam) words, (5th housing intake 577, (per not and one 581 (“While complaint in the lock- advocated and temperature extended uncomfortable, majority required are or even opinion that alone may down clearly in this court’s estab finding plaintiff mentioned support cannot and lished law.7 It is conclude subjected punish- disingenuous to cruel unusual Thaler, Kennedy, Livingston, Stephens, and says should 6. Another case officials high risks heat.” steps steps prisoner take to "address the of air has no condition taken Garza, 866, Fed.Appx. Unit.”)). See 484 Blackmon housing It at the Garza West areas Cir.2012). (5th unpublished But as 872 an remedy could unlikely that such a be under- opinion, sup- non-precedential and Blackmon by taken Executive Defendants without plies clearly law. no established legislative approval due to the cost. In addi- tion, precedents court’s to the extent this frequently complains 7. about the The comprehensive speak heat reme- about more (See, conditioning lack air in Garza West. of dies, conditioning they reject air must be ¶ e.g., Compl. ("Though at extreme Pl.’s 35 Ball, prisons. ensure cool installed to temperatures at the West Unit indoor Garza Blackmon, 599; Fed.Appx. at 792 F.3d at well known and to TDCJ summer n. officials, including leadership, UTMB TDCJ's that it would have been clear to rea- nate incident.” Thompson, Connick v. 51, 1350, 1363, U.S. 131 S.Ct. sonable Executive Defendant that his con- 179 L.Ed.2d (2011) (quoting City Canton v. Har- duct violated established constitutional ris, 378, 392, 489 U.S. right.8 (1989)). 103 L.Ed.2d 412 Moreover, plaintiffs complaint dem- fact, complaint as the recognizes, the onstrates that the Executive Defendants state something did do potential address reasonably acted under these circum- consequences adverse medical high stances. complaint The discusses that temperatures: rely defendants policies recognized TDCJ the risk of heat the University of Texas Medical Branch- ¶¶ (See 48-50.) 19, Compl. stroke. PL’s at in formulating Galveston policies and tak The discusses that TDCJ train- ing relating actions to the health and medi (Id. ing covers the risk of heat stroke. (Pl.’s safety cal of prisoners. Compl. at ¶¶ 71-72.) The complaint avers ¶¶ 143.) 13, 15, 31, Our case law allows policy requires TDCJ provision of a prison officials to defer to medical profes (Id. certain amount per day. of water sionals on a wide range of health issues. ¶ 60.) that, The complaint specifies under See, Brauner v. e.g., Coody, 793 F.3d policies, current all prisoners arriving at (5th Cir.2015). Because our cases Garza West were forbidden to labor out- sometimes held officers liable exam, doors until physical had a for seeking professional medical atten- those with heat-sensitive conditions could tion prisoners, for few things seem more neither engage labor nor in recreation in reasonable than relying on the judgment ¶¶ (Id. high temperature conditions. of a well-respected organization medical 123.) safety policies address health and concern- plaintiffs mere dissatisfaction with ing prevention and treatment of heat specificity policy breadth of See, e.g., stroke. Thompson Upshur training does not policies objec render the (5th Cir.2001) Cty., 245 F.3d 457-64 tively purposes unreasonable for the (reviewing holding cases and jail that a See, qualified immunity. e.g., Whitt v. Ste official violated clearly established law (5th phens Cty., 529 F.3d Cir. failing to “arrang[e] professional medi- 2008). Supreme Court has cautioned cal assistance for ... serious medical against second-guessing specificity and need”); Dep’t Domino v. Tex. Criminal coverage existing policy training in Justice, Cir.2001) *23 § damages the context of 1983 actions be (calling provide decisions to medical treat- every cause time a state actor violates a ment a “classic example of a matter for § right, constitutional “a 1983 plaintiff will judgment”); medical see also Lee v. be to point something (7th Cir.2008) able to Young, [state] 533 F.3d 511 (“[I]n ‘could have prevent done’ to the unfortu- determining way the best to handle (11th "[a]ssuming Cir.2004) argu- 8. And this is (finding for the sake of no constitutional vio right 'clearly ment that a can be established’ temperatures ranged lation where from 80 to by precedent despite disagreement circuit ("not degrees unconstitutionally exces Barkes, appeals.” the courts of 135 S.Ct. at sive”)' prison’s and the remedial measures Otherwise, any right "clearly estab- system, prison ventilation not in cells were.a lished” in compared our case law must be sunlight, prisoners compelled direct not to against pronouncements of other courts of , heavy clothing perform wear or laborious appeals that have had occasion to consider tasks, prisoners running with access to See, prisons. hot e.g., in the drinking cup). water and a Crosby, Chandler v. 1297-98 high-level officials microman- needs, officials crawl while prison medical an inmate’s mis- fear that for aged their subordinates are enti- professionals not medical who are “punitive and subject them to takes would of medical rely opinions tled to on in federal court. judgments compensatory” professionals.”). ¶¶ 8-10.) (See id. TDCJ clearly not established It is Barkes, v. Taylor to This leads us back re- specific policies to have more needed case, but which should control which heat-vulnerable deal with garding how to para- to a dismissive majority confine It conditions. high heat during prisoners originated tragedy: Taylor also graph. the Executive for certainly reasonable at 2043. subordinates, jail 135 S.Ct. a suicide. rely to on Defendants the Delaware the head of sued guards, plaintiffs prison or wardens doctors and the of Corrections Department necessary steps to address to take the the suicide failing prevent to or warden on an that arise individual problems the medical Johnson, supervising properly unit level. See Johnson the suicide Cir.2004) (“Like who administered pris- personnel all F.3d summary Denying screening protocol. Id. officials, supervisory defendants it clear- found the Third Circuit judgment, reasonable measures duty a take to “particular that a vulnera- ly size of established given Yet inmates. protect medical was a serious oversee, bility suicide” they can- operation within the encompassed in need personally” intervene expected to not be Med., arises.) (citation Barkes v. First Corr. omit- Amendment. every threat (3d Cir.2014), Inc., 307, 328-29 ted). rul- court more definitive Without nom., at 2044. Taylor, S.Ct. rev’d sub objectively unreasonable ings, it is not to conclude pivoted then to The Third Circuit exist training when beyond “plaee[d] it finding a illness, they ulti- that such but avert heat-related suicide-preventive every appropriate debate that inadequate to address mately prove component of required are a measures conceivable situation. prison ad- command that Constitution’s core implicate a Contrary would rules mental and provide adequate ministrators immunity: govern- qualified function of Id. at health care for inmates.” physical efficiency and effectiveness. ment (citation marks quotation and internal 457 U.S. Fitzgerald, Harlow omitted). (1982) 2727, 2736, 73 L.Ed.2d 396 summarily Supreme A Court immunity’s unanimous (describing one immunity granted qualified official reversed as “the diversion of chief concerns issues”). 2044. The of law. Id. as matter pressing public energy from under Third Circuit even had Court held if Executive Imagine Director TDCJ’s imple- proper “to right precedent, the amount personally oversee prevention adequate suicide mentation prisoners water afforded temperature of clearly Id. was not established. protocols” or else face facilities at all TDCJ (See the Third Cir- recognized that Compl. The Court liability. Pl.’s personal risk of *24 pris- that where may' ¶ establish ... cuit’s system cases (“Throughout particular “know ... of on officials for each enough contain water jugs did not inmate, they of an vulnerability to suicide them enough protect to to drink prisoner with reckless not to obligation act heat, filled frequently from the vulnerability.” Id. at water.”)). to that a rule indifference Such with lukewarm omitted) (internal marks quotation a 2045 functioning to government would reduce Upper Darby Twp., (quoting Colburn stroke” for “suicide” in Supreme (3d Cir.1988)). But such language proves my point. Court’s Para- clearly cases did not establish “that deten- phrasing Taylor, implement particular tion facilities must may [Fifth Circuit] cases establish that procedures identify to such vulnerable in- where ... officials “know mates, specify let alone procedures what particular vulnerability to [heat stroke] “identify any or would suffice” minimum inmate, of an they have an obligation not screening procedures prevention proto- to act with reckless indifference to that cols that facilities must use.” Id. In this vulnerability.” Taylor, 135 S.Ct. at 2045 concluded, light, the Court “even (internal omitted). quotation if marks But [jail’s] screening prevention suicide that does not clearly establish “that de- measures contained the shortcomings that tention implement facilities must proce- respondents allege, precedent no on the dures to identify such vulnerable in- books ... peti- would have made clear to mates, specify let alone procedures what they tioners overseeing system were minimum “identify would suffice” or (em- violated Constitution.” Id. screening procedures or prevention pro- added). phasis (em- tocols that facilities must use.” Id. added). Thus, phasis “even if [TDCJ’s parallels The Taylor between and this heat vulnerability and heat stroke] case are obvious. Like the Third Circuit screening prevention measures con- majority, majority here affirm an tained the shortcomings respon- right Amendment medically vul- allege, precedent dents no on the books subjected nerable inmates not to be August [in would have made 2012] clear extreme adequate without petitioners were overseeing remedial measures. Like the Third Cir- system that violated the Constitution.” majority, panel cuit majority ap- here Id. prove a claim that these defendants were

deliberately indifferent to the inmate’s ser- prior No Fifth Circuit case comes close ious medical policies needs because their giving these Executive Defendants fair provide “adequate failed to certain remedi- notice that system- needed additional al measures” or “measures like those” medical, housing, wide or intake mentioned in prior circuit case law. More- running avoid afoul of the Constitution and over, in Taylor, as alleged it is that the exposing personal liability. themselves to Executive system Defendants knew their This court grant should the Executive De- inadequate because thirteen in- other fendants’ motion to dismiss. mates died from years heatstroke in five Hinojosa’s

before Taylor death. The III. SUFFICIENCY OF PLEADING plaintiffs explicitly also alleged that EXECUTIVE DEFENDANTS’ Delaware officials “were aware that LIABILITY the suicide rate in prisons the Delaware Underlying all immunity cases was above the national average.” Third question is the plaintiff “whether the has ¶ Compl. 54(i), Am. Barkes v. First asserted a violation of a constitutional Med., Inc., 06-104-LPS, Corr. No. 2012 right Siegert Gilley, at all.” 500 U.S. (D.Del. 2012). WL 2914915 July 226, 231-32, (1991). majority’s analytical mistake in this L.Ed.2d 277 must decision is the same mistake made assert the constitutional violation in a com- Third Circuit. Simply substituting matter, plaint containing “heat “sufficient factual *25 to that vulnera- indifference with reckless true, claim to relief to ‘state a as

accepted Iqbal, bility.”). its face.’” plausible that is (2009) (quot 678, at 1949 129 S.Ct. at U.S. com- length, plaintiff’s the Despite its Twombly, 550 U.S. Corp. Atl.

ing Bell conclusional rife with bare here is plaint 1974, 1955, 167 L.Ed.2d 570, 127 S.Ct. Executive Defen- the allegations against “la (2007)). consisting of complaint A allegations. specific irrelevant dants and “naked asser or conclusions” bels and their knowl- plead fails to complaint The enhance further factual devoid tion[s] at conditions edge of unconstitutional Id., at 129 S.Ct. suffice. ment” will not in fact demonstrates Garza West (internal (alteration quo original) “ade- reasonably provide they acted omitted) Twombly, (quoting marks tation remedial measures.” quate 1965-66). at at S.Ct. 550 U.S. enough plead must plaintiff Instead Generalized, allegations conclusional A. ... across claims “nudge[ ] [the] facts to Id. plausible.” from conceivable the line that, plain has made Supreme Court (internal quota at 1951 at liability, each Govern vicarious “[a]bsent omitted) Twombly, (quoting tion marks official, or her title notwithstand ment his 1960). 570, 127 at at S.Ct. 550 U.S. or her own mis only liable for his ing, is a violation To assert 677, 129 at S.Ct. Iqbal, 556 U.S. conduct.” indifference for deliberate Amendment complaint plaintiffs at 1949. When safety, plaintiffs or inmate’s health all defen covering blanket terms uses “pris- allege plausibly must calling dants, together them by lumping an unreasonable pose[d] ... on conditions “TDCJ,” allega collectively them plaintiff to the damage” risk of serious disregarded unless properly tions with deliberate officials “acted can Executive Defendants to the reference Ball, 792 posed.” to the risk indifference clearly inferred. Accord. Weiland (internal marks quotation at 592 Office, 792 F.3d Cty. Palm Beach Sheriff's omitted). indifference is Deliberate Cir.2015) (describ & n. 14 allege plaintiff must negligence; mere as a “shotgun pleading” this form of ing the Executive Defendants more than that “asserting multiple consisting of “sin” known about the risk. should without against multiple defendants claims 835-36, Farmer, S.Ct. 511 U.S. are re of the defendants which specifying Instead, plead must plaintiff omissions”). acts or sponsible for which actually Executive Defendants instance, alleges that “De For respond failed to the risk and knew about inadequate grossly provide fendants id. at reasonably in the face of it. See survive help prisoners amounts of water 1982-83; see also 844-45, 114 S.Ct. indoors.” extremely-high temperatures Johnson, (“Finally F.3d at 524 —and ¶ 60.) (Pl.’s plausible It is not a Compl. at liability if the is no significantly ...— there Director Executive that -TDCJ inference risk, reasonably responded official way from his all the Livingston, Brad ultimately not avert if harm even office, provides personally Huntsville (internal omitted); ed.”) marks quotation water to amounts of inadequate grossly (characteriz S.Ct. at 2045 Taylor, 135 cf. BeeVille, All such alle Texas. prisoners holding that Third cases as ing Circuit disregarded. should have been gations ... of the “know where officials De- the Executive complaint against of an vulnerability to suicide particular propositions on three depends inmate, not to act fendants obligation have an

685 First, they allegedly knew. excessive the elements of a deliberate indifference deadly.9 Second, heat can be excessive claim but do not alone suffice to allege an heat can be even riskier for those with Eighth Amendment violation. Iqbal, See Third, certain medical conditions.10 (“A 556 U.S. at 129 S.Ct. at 1949 Executive Defendants knew that it could pleading that ... offers a formulaic recita- extremely hot the units of the Texas tion of the elements of a cause of action system, prison including at Garza West.11 do.”) (internal will not quotation marks These knowledge bare accusations of are omitted). “not entitled to assumption of truth.” The conclusory and threadbare nature of Iqbal, 556 at U.S. 129 S.Ct. at allegations these expected, to be (rejecting 1951 a similar allegation that course. The Executive Defendants over defendant “knew of [and] condoned ... houses, entity clothes, feeds, see an (in confinement”) harsh conditions of [the] 150,000 and cares for people day across omitted). ternal quotation marks In a 111 different facilities. There is no allega case charging a former Texas di tion that played the Executive Defendants liability rector with inmate-on-in direct role the management of the murder, mate long ago rejected court unit, Garza West much in Hinojosa’s less allegations similar knowledge and con- 679, 129 intake or incarceration. See id. at donation, declaring coupled that even when at (“Determining S.Ct. 1950 whether a “conclusory allegations and ... tech plausible states a claim for relief nical buzz words” flunked the minimal will ... be a context-specific task that pleading Jacquez standard. See v. Procun ier, (5th Cir.1986) requires the reviewing court to draw its J.). judicial sense.”). Thus, (Reavley, experience and common allegations that there was a substantial That is the nature large, complex organ risk to vulnerable in mates from the heat and the Executive izations and the why prisoner reason law Defendants were of it merely aware track always suits are almost directed at a unit’s 9. See Pl.’s ¶ ("As ¶ Compl. death.”); ("To ry at put each of the simply, id. at 67 it long officials, Thaler, Defendants have known and discussed Stephens, TDCJ such ... as internally high-level at TDCJ and UTMB lead- Livingston ... and ... know that TDCJ and ership meetings tempera- well before immediately identify prisoners UTMB fail to body tures this elevated cause human with heat-sensitive medical conditions and ¶ down.”); Thaler, ("Livingston, shut id. at 94 endangers prison- know that this failure Stephens tempera- [and] ... knew extreme ers[.]”). deadly.”). tures can be ¶ Compl. ("Livingston, 11.See Pl.'s at 92 Thal- 10. See Pl.’s ¶ ("It Compl. was well er, Stephens tempera- ... knew [and] indoor known to leadership, TDCJ and UTMB in- regularly tures in TDCJ facilities exceeded 90 Defendants, cluding people with cer- summers")/ degrees during the hot Texas id. conditions, tain hy- medical like diabetes or ¶ Thaler, ("Livingston, Stephens at 93 [and] medications, pertension, or who take certain living ... knew inmate areas at the Garza diuretics, antipsychotics like are much West Unit were not air conditioned and that temperatures.”); more vulnerable to extreme apparent temperatures routinely skyrock- ¶ ("Defendants TDCJ, Livingston, id. Thaler, during eted the hot Texas summers and rou- . Stephens many pris- [and] ... know indoors.”); tinely degree exceeded 90 id. at oners have medical conditions that make the ¶ ("Thaler, ¶ Stephens, Livingston ("TDCJ are deadly.”); extreme heat id. at officials, daily temperature readings aware that including Livingston, and UTMB are Thaler, Stephens prisoners readings taken at the [and] ... know that these disabilities, custody routinely [degrees] TDCJ suffer from above all times months.”). inju- and are at during increased risk of heat-related the summer TDCJ for pursued against TDCJ have been guards, or individual not the suits warden Third, injuries. immediate alleged sub- heat-related Director and his Executive *27 the risk of heat policies recognize Executive Defen- TDCJ Because the ordinates. Fourth, air con- liability pigs for the receive more not bear vicarious stroke. dants do Fifth, subordinates, a ditioning prisoners. it is than Texas inaction actions or of to plausibly representative for to state sent a letter TDCJ challenging plaintiff a more high the showing expressing defendants’ de- in 2011 concern about allege facts these that TDCJ temperatures asking indifference. take liberate Finally, as preventative measures. the uniformly this court has Consequently, asserts, majority opinion “open the rejected or dismissal otherwise affirmed hot con- dangerously nature of obvious the prison liability high-ranking personal also an inference support would of ditions only on knowledge is based officials when indifference.” deliberate to problems. In addition Jac- system-wide court, in Livingston, v. quez, this Walker substantial factual Arguably most liability theory Livingston’s of rejected a that the allegation is Executive Defendants inmate’s based on knowl for an murder prisoners knew that thirteen other systemic condonation of deficien edge and from various medical conditions died heat were no concluded that there According cies. We between 2007 and 2012. stroke “any of any of facts or sort allegations complaint, “regu- were to the these deaths part defendants knowledge of these larly meetings discussed” attended (but suggest any reason to believe Stephens evidently that would not Thaler and any subjec likelihood of actual Again, complaint pleads there Livingston). parts on their respective tive awareness Defen- more than that the Executive little specific plaintiff].” fact, risk to 381 [the of pleading dants “knew” instead Cir.2010); also Fed.Appx. see significance how knew that Edenfield, Fed.Appx. v. Lott F.2d at 792 knowledge. Jacquez, Johnson, (5th Cir.2013); Hinojosa (dismissing complaint against pris- Texas (5th Cir.2008). 370, 379 Fed.Appx. where “omit[ted] on director sum, Defen allegations the Executive way of how in what explanation generally dants knew of risks knew” of an imminent attack defendants (internal high inmate) from do not system quotation one against deliberately omitted). plausible they make it were marks That the deaths were condi indifferent to unconstitutional meet- “regularly high-level discussed” West.12 tions Garza if ings nothing vague is about nature or extent the discussion. See Allegations Specific B. Narcotics, v. Miss. Bosarge Bureau (5th Cir.2015) (“[S]ome alle- gen- up To shore otherwise insufficient legal stating relies on while not ultimate allegations, gations, eral conclusions, thread- designed an infer- are nevertheless so several facts' to allow speculative fail to cross ence of the Executive Defendants’ deliber- bare or First, conclusory other and the ate indifference. thirteen the line between the (internal factual.”) (alteration original) died from heat stroke be- prisoners TDCJ omitted) Second, (quoting marks Peñal- quotation 2007 and 2012. several law- tween dangers injunctive relating edge adverse court’s cases conditions This Ball, See, involved, prisoners. e.g., 792 F.3d particular unlike this heat conditions 594-95; Gates, case, personal 376 F.3d at 335. executive defendants' knowl- Fortuno-Bwrset, Relatedly, complaint alleges bert-Rosa that it (1st Cir.2011)). 592, 595 plausible is even more that the Executive deliberately Defendants were indifferent accepting Even the Executive De danger because he deaths, fendants were aware shared some medical characteristics with allegation necessary lacks the context prisoners already who had died of heat prison system housing evaluate it. In a story stroke. But the here is mixed. The 150,000 time, any given over inmates at it complaint alleges only four of the 14 hardly plausible thirteen deaths (including Hinojosa) decedents hy- were years single over six from a cause raise *28 pertensive and that three of 14 the were awareness of a in substantial risk to the diabetic.14 Ten of the 14 (including Hino- mate population.13 While we must view josa) prescribed were a psychotropic drug in well-pleaded light facts the most favor (not and three of the 14 including Hinojo- plaintiff, able to the this does not dis sa) were prescribed a diuretic. ages the charge plaintiffs provide burden to of who ranged 62, those died from 36 to factual necessary information and context but among the youngest at See, complaint. e.g., to evaluate his Burgis places vary, too, 44. The of death includ- Sanitation, 63, Dep’t v. N.Y.C. 798 F.3d of ing the Coffield Unit and Mitchell Units in (2d Cir.2015); Chi., 70 McTigue City v. of (300 Colony away Tennessee miles from 381, (7th Cir.1995) (statistics 60 F.3d 383 West), Garza several TDCJ locations in without context are satisfy “insufficient to (over Huntsville 250 miles away), requirements even the loose of notice (over in Hodge Unit Rusk away), miles pleading”); Hazelwood Sch. Dist. cf. (over the Hutchins State Jail in Dallas States, 299, 312, United 433 U.S. away), miles Connally and the in Unit 2736, 2744, (1977) (“Statis 53 L.Ed.2d 768 (30 Kenedy short, away). miles In no ... in variety.... tics come infinite Their picture clear emerges profiles from the of usefulness depends on all of the surround the men already who had died. circumstances.”) (brackets Conse- ing facts and omitted) quently, hardly plausible it is to draw the (quoting Int'l Bhd. Teamsters States, inference of the Executive Defendants’ de- United 431 U.S. 1843, 1856-57, liberate prisoner S.Ct. 52 L.Ed.2d 396 indifference to a Hino- (1977)). josa’s position at Garza West. Black, (5th Cir.1998) publicly

13. Statistics available from the Jus- ton v. Department tice (violence). indicate that between 2007 Presumably, this court would not 2,600 prisoners almost died while plaintiff plead allow a that the Executive death, custody. Including Hinojosa's in TDCJ deliberately Defendants were indifferent to a prisoner this means that of Texas deaths 0.5% personal threat to them of homicide or sui- during period this time resulted from heat solely comparatively cide based on these al., supra stroke. See Noonan et note at 25 more common occurrences. above, during period tbl.25. As noted from prisoners 2001 to died in TDCJ during 14. It has been estimated that a recent custody as a result of suicide and a 54 as period study approximately under 19.2% average result of approxi- homicide—an population of the male of the Texas 4.2% mately year, respectively, 25 and 4 deaths a prison system hypertension are afflicted with average per more than the number of deaths diabetes, respectively. Amy J. See Harz- (less Yet, 3). year alleged in this case than al., ke et Prevalence Chronic Medical Condi- precedents emphasized our that both Among Sys- tions Inmates in the Texas Prison part prison suicide and violence are life. tem, (2010). 87 J. Urb. Health 491 tbl.l Domino, (suicide); 239 F.3d at 756 New- And a letter from a pre- had tions confinement. that TDCJ been sued The fact “expressing single representative by state unsuccessfully, generally viously, high temperatures concern” does not about tempera- of extreme complaining inmates knowledge, lead an inference of either. plausible inferences not create tures does from the complaint quotes letter We have held against these defendants. cells inside “do not context that assertions a similar night,” degrees fall his below 100 but particularly strong ... pleadings are “not charge flatly plain- contradicted knowledge. to show defendants’ evidence” containing own A letter pleadings.15 tiff’s Furthermore, Ball, F.3d at 595. just “express- and otherwise dubious facts in the com- discusses cases ... over conditions is ing concern” distinguishable. Valigura, plaint are all support proposition too weak East, involving Garza this court lawsuit were unconstitutional conditions such “temperatures into the said that indeed De- pervasive problem that Executive allegations are and hundreds nineties notice of fendants had actual substan- sufficiently serious to” violate the Hinojosa. tial risk to Valigura v. Mendo Amendment. Finally, majority, perhaps recogniz- Cir.2008) za, 232, 236 Fed.Appx. *29 deficiencies, ing the throw complaint’s curiam). however, (per jury, apparently A event, any “In their in the air: up hands those conditions existed at disagreed that the open danger- the nature of and obvious complete rendered a de Garza East and hot also ously support conditions would two-day after a trial. See fense verdict inference of deliberate indifference.” This Mendoza, 1, Valigura Jury at Verdict of ordinarily language negligence, the 2008). (S.D. 19, Tex. Aug. No. 2:05-CV-513 A cognizable not deliberate indifference. was dismissed as a de Livingston himself only claim arises if the Amendment v. Kukua because fendant in Blackmon unreasonably Executive Defendants acted he court found had no knowl district in obvious” “open of condi- face edge of the extreme Farmer, 843-44, 114 tions. 511 U.S. Cf. 398, F.Supp.2d of. 758 complained were And reasonable meas- S.Ct. 1982-83. (S.D.Tex.2010). Ruiz, a decision ures, inadequate ultimately pre- even if court, a only there is reversed this support finding not a injury, vent do testimony passing expert mention of Johnson, See deliberate indifference. Johnson, Ruiz v. danger. heat was a I in the explained 526. As discus- (S.D.Tex.1999), rev’d F.Supp.2d immunity, plaintiff’s sion of nom., v. United remanded sub Ruiz pleadings acknowledge own reason- (5th Cir.2001). States, 243 F.3d 941 taken to prevent able measures had been remaining allegations factual fail to injuries: prisoners at Garza heat-related plausibility. toward nudge complaint perform could not outdoor labor be- West policies recognized fact that TDCJ prisoners physicals; fore had intake risk does mean that of heat stroke could not labor outdoors vulnerable to heat deliberately Defendants were Executive engage or in recreation before had in prisons. to heat levels indifferent management physicals; intake Cooling approved measures for TDCJ’s delegated pro- health measures was flair oversight swine herd add a melodramatic but fessional medical UTMB- Galveston; (though alleg- human and extra water are irrelevant inmates’ condi- stroke, ¶ index was Compl. ("Though was the indoor heat still Pl.’s at 139 it See degrees.”). night the heat late at when suffered edly inadequate quantities) pre- clearly disregard evince wanton during scribed hot conditions. serious medical needs.” Id. Fur- thermore, the decision whether to pro- a court legal When evaluates the suffi vide additional treatment “is classic ciency complaint, of a it allega reviews the example of a matter for medical judg- holistically, alleged tions as facts are all Gamble, ment.” Estelle [v. 429 U.S. judicial admissions. See Ikossi-Anasta 50 L.Ed.2d 251 Supervisors siou v. Bd. La. State (1976).] Univ., (5th Cir.2009). Domino, 239 F.3d at 756. pled The facts here should preclude a de liberate indifference claim Ex against How can it be that the standards for ecutive Defendants imposing because the liability on the Executive Defen- become, includes reasonable policy measures to dants have majority’s in the eyes, very injury by Hinojosa. avert the suffered easier to meet than imposing those for Brauner, liability 793 F.3d at (holding the medical staff duty guards? Especially there was no deliberate Iqbal, plain- indifference on the after tiff part provided has not plaintiff’s officials where the the careful factual allegations pleadings own to meet the “replete pleading, were with exam burden of plausibility, ples highest- of attentive and three of the varied treatment ranking prison sys- from his officials the Texas physicians” “supervisory dili tem were deliberately gence” on the indifferent to Hino- part of the assistant war den). josa’s vulnerability to heat the condi- tions he faced at Garza West.

A irony proves injustice final of foot- I dissent. ing this claim on allegations broad about (a) the Executive Defendants’ knowledge *30 “open dangers obvious” from exces- (b)

sive heat in prisons failure to

implement more policies training. majority is allowing potential liability

on a more lenient basis than would be In re DEEPWATER HORIZON required for the actual treatment Corporation, Cameron International received at Garza In West. an inmate sui- Plaintiff-Appellant-Cross- case, cide granted qualified this court im- Appellee munity treating physician while carefully noting the critical difference be- malpractice

tween medical Liberty Underwriters, Insurance Incor Amendment deliberate indifference: porated, Liberty also known as Inter

Deliberate indifference is an Underwriters, extreme- Defendant-Ap national ly high standard to It indisput- pellee-Cross-Appellant. meet. able that an diagnosis by incorrect pris- No. 14-31321. personnel medical does not suffice to Appeals, United States Court of state a claim for deliberate indifference. Fifth Circuit. Treen,

Johnson v. (5th Cir.1985). Rather, Nov.

must show that the officials “refused to him, ignored

treat complaints, his inten-

tionally treated him incorrectly, or en-

gaged similar conduct that would