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

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

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

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

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