David Bailey v. Bryan Collier

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

FILED
January 30, 2017
No. 16-20445
Lyle W. Cayce
Clerk
MARVIN RAY YATES; KEITH COLE; JACKIE BRANNUM; RICHARD
ELVIN KING; FRED WALLACE; LAVAR JOHN SANTEE,

Plaintiffs - Appellees

v.

BRYAN COLLIER; ROBERTO M. HERRERA; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,

Defendants - Appellants

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

Before REAVLEY, DAVIS, and JONES, Circuit Judges.
PER CURIAM:
This interlocutory appeal arises out of a preliminary injunction that
Appellees obtained and have since allowed to expire. For the reasons set out
below, we DISMISS the appeal as MOOT, VACATE the district court’s order,
and REMAND for proceedings consistent with this opinion.
I.
This is a conditions of confinement case brought by prisoners housed in
the Wallace Pack Unit (“Pack Unit”) of the Texas prison system. The prisoners
allege that they are exposed to extreme heat throughout the summer months
and that such exposure, without sufficient mitigation, violates the Eighth
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Amendment’s ban on cruel and unusual punishment. To mitigate the effects of
the heat, the Texas Department of Criminal Justice (“TDCJ”) encourages its
prisoners to drink water. However, the water served at the Pack Unit contains
more arsenic than the maximum prescribed (but not yet fully enforced) under
federal regulations promulgated by the Environmental Protection Agency
(“EPA”).
Armed with these undisputed facts, the prisoners, on May 23, 2016, filed
a motion for preliminary injunction, seeking any and all relief necessary to
“stop the Texas Department of Criminal Justice from exposing them to the
combination of dangerously high temperatures ‘mitigated’ primarily by water
poisoned with arsenic.” On June 21, 2016, the district court issued the
injunction, ordering the TDCJ “to provide drinking water to the inmates at the
Wallace Pack Unit that conforms with EPA maximum contaminant level
requirements for arsenic beginning not later than [July 6, 2016] and
continuing until September 22, 2016.”
On September 23, 2016, the preliminary injunction automatically
expired pursuant to the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. §
3626(a)(2). We must therefore first determine whether we have jurisdiction to
address the merits of this injunction.
II.
“Because mootness is jurisdictional,” we cannot reach the merits of an
injunction that is moot. 1 Generally, when an injunction “expires by its own
terms,” it is moot and “there is nothing to review.” 2
The TDCJ, however, asserts that this appeal falls into an exception to
mootness known as capable of repetition yet evading review. A dispute is

1Goudeau v. Dental Health Servs., Inc., 125 F.3d 852 (5th Cir. 1997).
2Briggs & Stratton Corp. v. Local 232, Int'l Union, Allied Indus. Workers of Am. (AFL-
CIO), 36 F.3d 712, 713 (7th Cir. 1994).
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capable of repetition yet evading review if: (1) the challenged action is too short
in duration “to be fully litigated prior to its cessation or expiration,” and (2)
“there is a reasonable expectation that the same complaining party will be
subject to the same action again.” 3 The Supreme Court has noted that “the
capable-of-repetition doctrine applies only in exceptional situations . . . .” 4
“Accordingly, a party seeking to invoke this exception . . . bears the burden of
showing its application.” 5
The TDCJ has not established that it will be subject to the same
preliminary injunction in the future. The Pack Unit was, as of last summer,
the only Texas prison unit serving water that violates the EPA’s current
arsenic-related guidelines. And the TDCJ has assured us that, by next
summer, the Pack Unit will enjoy “a new filtration system” that will ensure
that these violations do not recur.
We see no evidence that the TDCJ will be subject to the same injunction
in the future. The injunction is therefore moot, not capable of repetition yet
evading review.
III.
Having determined that the TDCJ’s appeal is moot, we now vacate the
district court’s order. Our vacatur jurisprudence requires a case-by-case
“weighing [of] the equities . . . .” 6 We have stated however, albeit in dicta, that
“vacatur must be granted where mootness results from the unilateral action of
the party who prevailed in the lower court.” 7
The TDCJ’s appeal is moot because the prisoners allowed their
preliminary injunction to expire. True, the preliminary injunction

3 Williams v. Ozmint, 716 F.3d 801, 809–10 (4th Cir. 2013).
4 City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).
5 Williams, 716 F.3d at 810.
6 Staley v. Harris Cty., Tex., 485 F.3d 305, 310 (5th Cir. 2007) (en banc).
7 Id. (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 23 (1994)).

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automatically expired pursuant to the PLRA, but the prisoners could have
sought an extension in order to allow us to review it on appeal. They chose not
to do so. We, in turn, vacate the district court’s order. 8
IV.
We dismiss the TDCJ’s appeal as moot, vacate the district court’s order,
and remand for proceedings consistent with this opinion.

8 See United States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950) (recognizing that
vacatur is intended to prevent “unreviewable” judgments “from spawning any legal
consequences” whatsoever); see also Salter v. Continental Casualty Co., No. 5:03CV221(DF),
2004 WL 5573421, at *5 (M.D. Ga. Oct. 29, 2004) (noting that district courts are “inclined to
follow the example of other district courts within [their] circuit”).
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