CAMERON LANGFORDCourthouse News Service
February 16, 2017
HOUSTON (CN) – A Texas prisoner died from heat stroke due to the prison system’s former policy of not immediately calling 911 for emergencies, a federal judge ruled, refusing to dismiss deliberate indifference claims against prison officials.
Larry Gene McCollom arrived at the Hutchins State Jail in suburban Dallas on July 15, 2011 to serve a 12-month forgery sentence amid a record-breaking Texas heat wave.
With outside temperatures topping 100 degrees Fahrenheit, prison staff put him in a dorm with 57 other men, whose body heat increased the humidity in the room with sealed windows and no air-conditioning.
The only airflow came from two industrial fans mounted on the walls and one in the floor, and air handlers that circulated hot outside air into the room, according to the case record.
The events leading to McCollom’s death are detailed in U.S. District Judge Keith Ellison’s Feb. 3 ruling that was unsealed Monday.
“The Texas Department of Criminal Justice operates 109 prisons in Texas, housing approximately 150,000 incarcerated men and women. The majority of these prisons do not have air-conditioning in the inmate housing areas, but all of the prisons have some areas that are air-conditioned,” the ruling states. (Citations to documents omitted.)
Wardens’ offices and guard stations are air-conditioned.
A TDCJ spokesman told the Houston Chronicle on Tuesday that 29 of its prisons have air-conditioning in housing areas.
McCollom was the second of 10 Texas prisoners to die from hyperthermia or heat-related illnesses in the summer of 2011. From 1998 through 2011, 20 Texas prisoners died of heat, according to the ruling.
During an initial medical screening, the 5-foot-10-inch 310-pound McCollom told a prison medical aide he had a history of diabetes, depression, high blood pressure and mental illness.
Later that day, a physician assistant switched the high blood pressure drug McCollom was prescribed in a county jail before he was transferred to Hutchins to hydrochlorothiazide, a diuretic that decreases blood pressure, but dehydrates the user and disrupts one’s ability to cool down, raising the risk of heat stroke.
McCollom needed to drink lots of water to counteract the medication — prison staff put 10-gallon water jugs in the dorm each day and the prison system advised inmates to drink two gallons on hot days — but under the prison’s policy he was not given a cup and was not allowed to go to the commissary to buy one for 30 to 45 days after his arrival.
McCollom was initially assigned a lower bunk, but guards switched him to a top bunk three days later and he struggled to get in and out of bed, eventually no longer getting up to eat. Becoming desperate, he asked his fellow inmate Santos Rodriguez to bring him water in the cereal bowl Rodriguez used for a cup, Rodriguez stated in a declaration.
Around 2 a.m. on July 22, 2011, seven days after McCollom’s arrival, a prisoner told Officer Richard C. Clark that McCollom was shaking.
The day before McCollom fell ill, the heat index, a combination of heat and humidity, reached 150 degrees Fahrenheit outside the prison, according to a temperature log kept by prison staff and cited in the ruling.
Clark stated in an affidavit that he thought McCollom was having a seizure. He called his supervisor, Sgt. Karen Tate, who arrived five minutes later and also thought McCollom was seizing. His skin was hot, so Tate put a wet cloth on his neck and sprinkled water on his lips and checked his breathing.
Tate’s boss, Lt. Sandrea Sanders, came to the scene 30 minutes after McCollom was found shaking and, with no medical staff at the prison due to budget cuts, she called a nurse at another Texas prison.
The nurse looked up McCollom’s medical records, saw he had no history of seizures and told Sanders to call 911. Prison staff made the call at 3:04 a.m., nearly an hour after McCollom was found shaking and unresponsive.
It took five men, EMTs and prison guards, to lift McCollom off his bunk. His body temperature was 109 degrees Fahrenheit when he arrived at the Dallas hospital where he died on July 28, 2011.
The doctor who performed the autopsy said he died from hyperthermia. He was 58.
McCollom’s widow and two adult children sued former Texas Department of Criminal Justice Executive Director Brad Livingston, Hutchins State Jail Warden Jeff Pringle, TDCJ regional director Robert Eason, Sanders, Tate and Clark in June 2012 in Federal Court, alleging deliberate indifference to McCollom’s right to humane confinement, in violation of the Eighth Amendment.
They also sued the TDCJ and the University of Texas Medical Branch, which provides medical care for Texas prisoners.
In dismissal motions, Livingston claimed he is entitled to qualified immunity, which shields state employees from liability if their actions are reasonable in light of the circumstances even if they violate a person’s constitutional rights.
But Judge Ellison didn’t buy Livingston’s qualified immunity arguments, nor those offered by most of his co-defendants. He dismissed the claims against Clark, because Clark left the dorm right away to tell his boss that McCollom was convulsing, and did not return.
“Evidence reveals that Livingston, who was the executive director of TDCJ from 2004 until 2016, was aware of the extreme heat during Texas summers, and the fact that many TDCJ prisons did not have air-conditioning in the housing areas,” the 83-page order states.
“Plaintiffs also show that Livingston was aware of at least two heat-related deaths in TDCJ before McCollum’s death in 2011.”
Livingston, Pringle and Eason unsuccessfully argued that they were not deliberately indifferent because they did not have “any interaction with McCollum or any knowledge of his presence at the Hutchins Unit,” an argument Livingston made in another federal prison heat case.
Ellison found that Livingston should have known about the danger of prisoners’ overheating because it was obvious, an evidentiary standard established by the Fifth Circuit.
“A jury could consider the extreme temperatures that regularly occur during Texas summers, as well as the heat wave that swept Texas the summer of 2011, the plaintiff’s obesity, hypertension, and other medical conditions, and could conclude that the risk of harm was obvious,” Ellison wrote.
Ellison determined it wasn’t just the heat that killed McCollom.
“The combination of the following three policies led to an unconstitutional Eighth Amendment violation: 1) failing to provide 24-hour medical care, 2) an informal policy and practice of not immediately calling 911 when medical emergencies occur and medical staff is not on site, and 3) not treating seizures as medical emergencies,” he wrote.
When McCollom died, the TDCJ had a chain-of-command policy of not letting guards call 911 before their supervisors arrived on the scene of a medical emergency, which was changed in 2013 to let all staff call 911 themselves.
Ellison also noted there are disputes of fact, on whether the TDCJ brought water to McCollom’s dorm several times a day and whether it was sufficiently chilled.
The McCollom family’s American Disabilities Act and Rehabilitation Act disability discrimination claims against the TDCJ and University of Texas Medical Department also survived.
“Plaintiffs have adduced evidence that Larry McCollum’s tragic death was not simply bad luck, but an entirely preventable consequence of inadequate policies. These policies contributed to the deaths of eleven men before McCollum and ten men after him,” Ellison wrote in conclusion.
It’s not the first time that Judge Ellison, a President Bill Clinton appointee, has shown empathy for prisoners suffering and dying in extreme heat. He certified a class action in June 2016 of all current and future Wallace Pack Unit inmates and two subclasses of disabled and heat-sensitive prisoners who want the state to install air-conditioning, to prevent prisoner heat-stroke deaths.
Ellison granted the 1,400 inmates at the Pack Unit — a minimum-security prison in Navasota that houses disabled, sick and elderly prisoners — an injunction against the drinking water that exceeded federal standards for arsenic, and ordered prison officials to find a new water source.
The Texas prison system said it will appeal the McCollom ruling.