Case: 22-60203 Document: 195-1 Page: 1 Date Filed: 10/31/2024

United States Court of Appeals

for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-60203
consolidated with FILED
No. 22-60301, 22-60332, 22-60527, 22-60597 October 31, 2024
_____________ Lyle W. Cayce
Clerk
United States of America,

Plaintiff—Appellee,

versus

The Hinds County Board of Supervisors; Hinds County

Sheriff Tyree Jones, In his official capacity,

Defendants—Appellants.
______________________________

Appeal from the United States District Court

for the Southern District of Mississippi
USDC Nos. 3:16-CV-489, 3:16-CV-489,
3:16-CV-489, 3:16-CV-489, 3:16-CV-489
______________________________

Before Clement and Southwick, Circuit Judges. 1

Edith Brown Clement, Circuit Judge:
Hinds County, Mississippi, operates several detention facilities,
including the Raymond Detention Center (RDC or the Jail), whose
conditions of confinement are at the center of this appeal. In 2016, the United

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1
This case is being decided by a quorum. 28 U.S.C. § 46(d).
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States Department of Justice (DOJ) sued the County under the Civil Rights
of Institutionalized Persons Act, 42 U.S.C. § 1997a (CRIPA), alleging a
pattern or practice of unconstitutional conditions of confinement in four of
the County’s detention facilities. The DOJ and County entered into a
consent decree that stipulated numerous changes to conditions of
confinement in the County’s jail system.
But the decree did not resolve the dispute; to the contrary, a years-
long battle ensued in the district court as to whether and to what extent the
County was complying with the consent decree. The DOJ—citing record
numbers of inmate violence and injury, among other evidence of apparently
worsening conditions of confinement—argued that the County had mostly
failed to comply with the consent decree and was thus in contempt of court.
The County denied the contempt allegations and moved to terminate the
consent decree in full. The district court twice held the County in contempt
for its failure to comply with the consent decree but waited to impose a
corresponding sanction until after it had resolved the termination motion.
Finding that the County had only partially complied with the decree, the
court declined to terminate the consent decree and instead removed some of
the decree’s provisions, issuing in its place a new, shorter injunction, which
focused on conditions at one specific facility: RDC. As the sanction for the
County’s noncompliance, the court appointed a receiver with wide-ranging
responsibility to oversee the County’s compliance with the consent decree.
The County appealed both the new injunction and the related contempt
sanction of a receivership.
Because we find that some constitutional violations remain current
and ongoing at RDC, we conclude that the district court did not err by
declining to completely terminate the consent decree. The new injunction
remains overly broad in one respect, however. See infra Part III.A.4. We
further hold that the district court did not abuse its discretion by appointing

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a receiver or in crafting the scope of the receivership as it did, except with

respect to the district court allowing the receiver to “determine the annual
RDC budget, including for staff salaries and benefits, medical and mental
health services (including the medical provider contract), physical plant
improvements, fire safety, and any other remedies needed to address the
constitutional deficiencies documented in this case.” The district court also
failed to make sufficient need-narrowness-intrusiveness findings for each of
the receiver’s duties as required under the Prison Litigation Reform Act,
Pub. L. No. 104–134, §§ 801–10, 110 Stat. 1321, 1321–66 to –77 (codified as
amended in scattered sections in 11 U.S.C., 18 U.S.C., 28 U.S.C., and 42
U.S.C.) (PLRA). We therefore affirm the district court in all respects except
for those articulated in Sections III.A.4 and III.B.2 of this opinion.
I.
In 2016, the DOJ sued Hinds County, Mississippi, under the CRIPA.
The DOJ alleged unconstitutional conditions of confinement in the County’s
jail system, including at RDC, which is the primary adult jail facility; the so-
called “Work Center,” which houses lower-security and female detainees;
the Jackson Detention Center, which did not regularly house detainees when
the orders on appeal were issued; and the Henley-Young-Patton Juvenile
Justice Center, where the County has held youths charged as adults since
2019. RDC—the facility at the center of this case, for reasons explained
below—houses over 800 individuals, including pretrial detainees, convicted
prisoners, and youths accused of adult crimes. 2

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2
Although RDC houses a mix of pretrial detainees and convicted prisoners, for
ease of reference, the terms “detainees,” “inmates,” and “prisoners” will be used
interchangeably. Although pretrial detainees enjoy more rights in certain respects than
convicted prisoners, for reasons further explained below, our analysis in this opinion does
not turn on that distinction.

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In its complaint, the DOJ alleged, inter alia, that the jails exhibited
rampant inter-prisoner violence, inadequate staffing, the unjustified use of
force by officials, dangerously deficient facilities, and over-detention. The
DOJ conducted an investigation and issued formal findings that identified the
following issues, among others, in Hinds County’s correctional facilities:
unsafe jail conditions; severe understaffing, including both inadequate
numbers and qualifications of staff; lack of housing options to separate
different categories of inmates; defective locks, cameras, and alarms at RDC,
along with structural facility problems that allow inmates to attack each other
and to leave secure areas to obtain contraband; over-detention problems; the
placement of inmates with behavioral and mental health issues in booking
cells, which were supposedly filthy and not designed to serve as long-term
inmate housing; and a series of defective hardware, including broken smoke
detectors and cameras, trash buildup, missing fire-safety equipment, poor
lighting, leaks in the roof, and damaged vents, lights, and observation
windows.
In July 2016, Hinds County and the DOJ agreed to a sixty-four-page
consent decree, which required many changes to conditions of confinement
in the County’s jail system. The district court appointed a monitor to ensure
compliance with the consent decree. In June 2019, however, the DOJ moved
for contempt, alleging that the County had failed to adequately comply with
the consent decree. In its motion, the DOJ argued that the County had
achieved substantial compliance with only one of the consent decree’s
numerous provisions. The County avoided contempt at this point by entering
into a January 2020 stipulated order, approved by the district court, that was
designed to achieve compliance with the consent decree.
But conditions at RDC nonetheless worsened in several respects, with
a July 2021 monitoring report reflecting record numbers of fights and assaults
at the Jail, continued fires set by inmates, overdoses, and three deaths so far

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that year. In the next three months, three more RDC inmates died,
prompting an emergency report from the monitoring team. 3 And the
casualties did not stop there. Between October 2021 and January 2022,
seventy-seven assaults were reported at RDC, a figure that likely “severely
understated” the “full scale of violence at RDC” given the deficiencies in
reporting instances of violence. The monitoring team’s emergency report
characterized the pattern of deaths as “especially alarming.” Consequently,
the district court yet again ordered Hinds County to show cause as to why it
should not be held in contempt and why a receivership should not be
instituted. Yet, despite this wave of deaths and injuries in 2021 and early
2022, in January 2022, the County moved to terminate or modify the consent
decree, relief that it was entitled to seek at that juncture under the PLRA.
In February 2022, the district court held the County in contempt for
failing to comply with over two dozen provisions in the original consent
decree, including provisions concerning the protection of inmates from
harm, use-of-force training and supervisor reviews, incident reporting and
review, sexual misconduct, grievance and prisoner-information systems, use
of segregation, over-detention, and more. And, shortly thereafter, in March
2022, the district court yet again held Hinds County in contempt, this time
identifying RDC’s failure to comply with the consent decree and stipulated
order with respect to “A-Pod,” an especially unsafe portion of RDC.
Specifically, Hinds County had previously promised to move inmates out of
A-Pod, but the evidentiary hearing demonstrated that A-Pod still housed
inmates and would apparently continue to do so indefinitely. The district
court further found that gang-affiliated groups in effect run A-Pod, attack
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3
The district court, in a subsequent order, explained in detail the circumstances
surrounding each of the six deaths that occurred at RDC between January and October
2021 and each death’s relationship to RDC’s housing, staffing, supervising, reporting, and
investigating practices.

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unliked detainees, direct where detainees are housed, and decide who does
or does not eat. It also found that the majority of A-Pod’s cell-door locks do
not work, nor do many of the lights, and that A-Pod has approximately thirty
“trash dumpster cells” that have been welded shut but into which inmates
deposit trash through broken windows. Finally, the court found that A-Pod
inmates also regularly escape through the roof and return with contraband.
The district court waited to determine the contempt sanction pending
resolution of the County’s PLRA termination motion, for which the district
court had held a two-week evidentiary hearing in late February 2022. In April
2022, the district court declined to completely terminate the consent decree,
finding a number of ongoing constitutional violations that merited keeping
some of the consent decree’s provisions in place. Specifically, although the
County had made a few improvements in the six years since the consent
decree—such as fixing some door locks and approving a pay raise for
guards—most of the problems remained unfixed. As of early 2022, staffing
levels were at an “all-time low,” which, the district court found, was taking
its toll: In the same month the County moved to terminate the consent
decree, for instance, staff “discovered two inmates, covered in feces and
sores, who had suffered ‘considerable weight loss’ since their last well-being
check” as a result of mistreatment by the gangs controlling living units.
But although the district court declined to entirely terminate the
consent decree, it did remove many of the decree’s more detailed provisions,
concluding that many of those provisions exceeded constitutional
minimums. The district court then issued a new, much shorter injunction
containing only the provisions that it determined were necessary to meet
constitutional minimums. Among other things, the new injunction

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(i) removed the “Youthful Prisoners” provisions, which pertained only to

Henley-Young—the youth facility—and (ii) concerned only the RDC. 4
In July 2022, after a final mitigation hearing, the district court held
that the appropriate sanction for the County’s contempt was to appoint a
receiver to oversee the RDC. The district court did so in October 2022,
therein defining the scope of the receiver’s duties. The district court
neglected to expressly make the PLRA’s required findings regarding the
receivership, however. The DOJ therefore moved to confirm that the district
court had made the necessary findings, namely that the receivership order
was “narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to
correct the violation of the Federal right” and would not have an “adverse
impact on public safety or the operation of a criminal justice system” (so-
called “need-narrowness-intrusiveness” findings). 18 U.S.C. § 3626(a).
Later, on remand from this court, the district court amended its receivership
orders to incorporate its need-narrowness-intrusiveness findings. The
district court also amended the new injunction to reinsert certain provisions
related to juvenile detainees.
The County appealed the district court’s (A) denial of the termination
motion and imposition of the new injunction and (B) appointment of a

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4
On November 2, 2022, however, the DOJ filed a motion for reconsideration that
asked the district court to restore the provisions of the consent decree concerning Henley-
Young that the district court had previously terminated. The case reached us on appeal,
and we remanded for the limited purpose of the district court resolving that motion for
reconsideration. The district court granted the Government’s request and entered a new,
new injunction that reinstituted the “Youthful Prisoners” provisions concerning Henley-
Young. Although the “Youthful Prisoners” provisions of the new, new injunction concern
Henley-Young (the juvenile facility), for ease of reference, unless this opinion indicates
otherwise, references to conditions of confinement herein are presumptively to RDC. The
two injunctions are identical with one another with the exception of the “Youthful
Prisoners” provisions, which the County does not challenge on appeal.

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receivership as a sanction for contempt of court. This court stayed the new
injunction and the receivership pending appeal.
II.
The CRIPA empowers the United States Attorney General to sue
states and localities engaged in a “pattern or practice” of creating jail
conditions that violate inmates’ constitutional rights. 42 U.S.C. §§ 1997a(a),
c(a)(1). Under CRIPA, the Attorney General may seek “such equitable relief
as may be appropriate to insure the minimum corrective measures necessary
to insure the full enjoyment of [inmates’ constitutional] rights.” Id.
§ 1997a(a).
The PLRA, however, imposes strict limits on federal courts’ ability to
fashion civil prospective relief to redress constitutional violations proven in
a CRIPA action. 18 U.S.C. § 3626(a)(1). Under the PLRA, federal courts may
neither grant nor approve prospective relief “unless the court finds that such
relief is narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to
correct the violation of the Federal right.” Id.; see also Brown v. Plata, 563
U.S. 493, 531 (2011); Miller v. French, 530 U.S. 327, 347 (2000). Courts are
thus cautioned against “assum[ing] the superintendence of jail
administration” “under the guise of enforcing constitutional standards.”
Alberti v. Klevenhagen, 790 F.2d 1220, 1223 (5th Cir. 1986). In making its
findings, moreover, a court must “give substantial weight to any adverse
impact on public safety or the operation of a criminal justice system caused
by the relief.” 18 U.S.C. § 3626(a)(1)(A).
One method by which a federal court may grant civil prospective relief
is via consent decree. Consent decrees concerning conditions of confinement
are “terminable upon the motion of any party or intervener . . . 2 years after
the date the court granted or approved the prospective relief.” Id.
§ 3626(b)(1)(A)(i). Even where two years have passed, however, the district

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court may not terminate the consent decree “if the court makes written
findings based on the record that prospective relief remains necessary to
correct a current and ongoing violation of the Federal right, extends no
further than necessary to correct the violation of the Federal right, and that
the prospective relief is narrowly drawn and the least intrusive means to
correct the violation.” Id. § 3626(b)(3). A “current and ongoing”
constitutional violation is “one that exists at the time the district court
conducts the § 3626(b)(3) inquiry”—i.e., “at the time termination is
sought.” Castillo v. Cameron Cnty., 238 F.3d 339, 353 (5th Cir. 2001) (internal
quotations omitted).
“[A] district court’s decision to terminate or continue prospective
relief is to be reviewed for an abuse of discretion,” but, if the court’s decision
“turns on the application of § 3626(b) of the PLRA, that interpretation is
reviewed de novo.” Ruiz v. United States, 243 F.3d 941, 950 (5th Cir. 2001)
(internal quotations omitted). Any factual findings that the district court
made in support of its § 3626 determination are reviewed for clear error.
Brown, 563 U.S. at 512–13. The court’s “need-narrowness-intrusiveness”
findings under § 3626(b)(3) must be particularized “on a provision-by-
provision basis.” Ruiz, 243 F.3d at 950 (internal quotations omitted). The
district court should “consider each provision of the consent decree in light
of the current and ongoing constitutional violations, if there are any, and
determine which aspects of the decree remain necessary to correct those
violations.” Id. at 950–51. In so analyzing, a court may rely on illustrative
incidents rather than an “exhaustive[] catalog” of the evidence to establish
unconstitutional conditions. Alberti, 790 F.2d at 1225.
Below, we review the district court’s determinations as to whether
each provision of the new injunction remains necessary to correct any current
and ongoing constitutional violations at RDC.

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III.
A.
The DOJ argues that certain conditions of confinement at RDC are
cruel and unusual in violation of the Eighth Amendment and that these
conditions were current and ongoing at the time the County sought
termination, thus justifying continued prospective relief. Because pretrial
detainees retain at least those constitutional rights that courts have held are
enjoyed by convicted prisoners, the Eighth Amendment standard extends to
pretrial detainees, such as those at issue here, under the Fourteenth
Amendment. Aguirre v. City of San Antonio, 995 F.3d 395, 420 (5th Cir.
2021); Alberti, 790 F.2d at 1223 (quoting Rhodes v. Chapman, 452 U.S. 337,
346 (1984)); accord Bell v. Wolfish, 441 U.S. 520, 545 (1979); Hare v. City of
Corinth, 74 F.3d 633, 649 (5th Cir. 1996) (en banc).
To determine whether an Eighth Amendment violation exists, we
must ask two questions. The first is whether the deprivation is “sufficiently
serious” as an objective matter to constitute cruel and unusual punishment.
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted).
For example, prison officials may not use “excessive physical force against
prisoners.” Id. at 832. Similarly, jail officials must “provide humane
conditions of confinement,” including by “tak[ing] reasonable measures to
guarantee the safety of the inmates”—such as protecting inmates from
fellow prisoners. Id. (internal quotations omitted); id. at 833. “For a claim . . .
based on a failure to prevent harm, the inmate must show that he is
incarcerated under conditions posing a substantial risk of serious harm.” Id.
at 834.
The second element—the subjective component—is whether prison
officials, in operating a prison whose conditions are objectively sufficiently
serious to support an Eighth Amendment claim, acted with “deliberate
indifference to inmate health or safety.” Id. (internal quotations omitted).

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Under the subjective component, a plaintiff must show that prison officials
were both “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists” and did actually “draw the
inference.” Id. at 837. “[E]ven where a State may not want to subject a
detainee to inhumane conditions of confinement or abusive jail practices, its
intent to do so is nevertheless presumed when it incarcerates the detainee in
the face of such known conditions and practices.” Hare, 74 F.3d at 644.
Likewise, where a plaintiff “presents evidence showing that a
substantial risk of inmate attacks was longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past,” and
circumstances suggest that the official “had been exposed to information
concerning the risk and thus must have known about it, then such evidence
could be sufficient to permit a trier of fact to find that the defendant-official
had actual knowledge of the risk.” Farmer, 511 U.S. at 842–43 (internal
quotation omitted). There is no Eighth Amendment violation, by contrast,
where prison officials “respond[] reasonably” to risks to “inmate health or
safety.” Id. at 844.
Here, on appeal, the County contends that the district court erred by
declining to terminate the consent decree. The County principally argues
that the evidence cited by the district court was not sufficiently “current” to
show “current and ongoing” constitutional violations 5 and that the DOJ

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5
The County claims that, “[a]t the longest, ‘current and ongoing’ should extend
no further back than 6 months before the last evidentiary hearing in this case, which was
held on July 19, 2022.” But that position has two defects.
First, even assuming that courts are empowered to consider only the six months
preceding the § 3626 hearing, that hearing occurred in February 2022—not July 2022 (the
July 2022 hearing concerned the contempt proceedings). In any event, “at the time the
district court conducts the § 3626(b)(3) inquiry” means “at the time termination is
sought,” Castillo, 238 F.3d at 353 (internal quotations omitted), and here, the County filed
its motion to terminate in January 2022, and the motion was heard in February 2022 and

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failed to show that the County is acting with deliberate indifference. 6 Below,
we analyze whether the district court erred in holding that Eighth
Amendment violations justifying each of the provisions of the new injunction
were current and ongoing as of January 2022—the time period during which
Hinds County sought termination of the consent decree. Castillo, 238 F.3d at
353.

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decided in April 2022. So, however long courts must look back to determine “current and
ongoing,” the timeline would run from January 2022—not July.
Second, it is unclear exactly how far back we can, or must, look to determine
“current and ongoing” constitutional violations. As mentioned above, the County argues
that the answer is six months before the relevant evidentiary hearing. But it is unclear where
that figure comes from or that there is any hard-and-fast numerical rule. Courts have taken
wide latitude in determining how far back to look for “current and ongoing” constitutional
violations in the context of a § 3626 inquiry. See, e.g., Depriest v. Walnut Grove Corr. Auth.,
No. 3:10–cv–663, 2015 WL 3795020, at *8–9 (S.D. Miss. June 10, 2015) (collecting cases),
appeal dismissed as moot, 669 F. App’x 209 (5th Cir. 2016). And in order to determine
whether a “pattern or practice” of constitutional violations exists, a snapshot of a prison in
a moment in time would be inadequate; rather, a court must look back some period of time.
See Alberti, 790 F.2d at 1224 (collecting cases). Deliberate indifference, for example, can
be established via evidence showing notice of a problem from many years ago. See Gates v.
Cook, 376 F.3d 323, 341 (5th Cir. 2004) (holding that a failure to address a problem known
to be “urgent for more than a decade” supports the finding of deliberate indifference). For
purposes of our analysis, we will consider the twelve months prior to the January 2022
motion to terminate the relevant time period (hereinafter so described).
6
The County appears to suggest that the district court’s order and opinion
establishes ongoing but not current constitutional violations. But courts often use “ongoing”
as shorthand for “current and ongoing.” See, e.g., Guajardo v. Tex. Dep’t of Crim. Just., 363
F.3d 392, 394–98 (5th Cir. 2004) (per curiam); Ruiz, 243 F.3d at 950–51 (using “ongoing”
and “existing”); Castillo, 238 F.3d at 347. Moreover, “current” means “occurring in or
existing at the present time,” Current, Merriam Webster (2024 ed.), and “ongoing”
means “being actually in process,” Ongoing, Merriam Webster (2024 ed.). So,
neither caselaw nor textual definitions support the County’s theory that the DOJ has
proven one adjective but not the other.

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1. Protection from Harm

The first provision of the district court’s injunction concerns
“protection from harm,” namely whether RDC’s failure to prevent violence
among inmates represents a current and ongoing constitutional violation. To
be sure, unchecked prisoner-on-prisoner violence can amount to an Eighth
Amendment violation. When “terror reigns,” for instance, “[v]iolence and
sexual assault among inmates may rise to a level rendering conditions cruel
and unusual.” Alberti, 790 F.2d at 1224 (internal quotations omitted)
(quoting Jones v. Diamond, 636 F.2d 1364, 1373 (5th Cir. 1981), overruled by
Int’l Woodworkers of Am., AFL-CIO & its Loc. No. 5-376 v. Champion Int’l
Corp., 790 F.2d 1174 (5th Cir. 1986)). In weighing whether inter-prisoner
violence amounts to an Eighth Amendment violation, “[q]uantitative
measures” of such violence are relevant to a court’s analysis. Id. at 1226. “It
is not necessary that every inmate be assaulted every day before a federal
court may intervene”; rather, a “pattern of violence” combined with
“inadequate supervision” can constitute an Eighth Amendment violation.
Id.
Here, the district court held that RDC failed to protect inmates from
harm during the relevant time period, citing the volume and nature of inmate
deaths and assaults in 2021. That failure to protect, the court concluded, rose
to the level of an Eighth Amendment violation under Alberti. In particular,
the court explained, between October 2021 and January 2022, the court
monitor calculated at least seventy-seven assaults, a figure that omits
unreported assaults and thus likely “severely understated” the “full scale of
violence at RDC” given the deficiencies in reporting instances of violence.
Six detainees died in 2021, moreover, from causes including assault, suicide,
overdose, and illness.
The safety issues in A-Pod alone are numerous. At the evidentiary
hearing, testimony reflected as much: “It is no secret that RDC is unsafe,

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especially A-Pod.” Staff reportedly “call out sick or just [do] not show up for
work” because they are “afraid to work a pod.” The inmates in A-Pod, and
C-Pod, Unit 3, have established “inmate committees” or “gang
committees” that “essentially run the unit and among other things . . . decide
if there’s someone on the unit that they don’t want on the unit.” The
committees deprive unwelcome detainees of food and “will harass, steal
from, [and] assault that inmate” until the detainee requests to be moved.
“There is no lighting, no way to see inside the cells from outside, and the cell
doors don’t lock.” In fact, expert testimony from the monitoring team
adduced at the evidentiary hearing further reflected as follows:
A-Pod is a disaster. It’s filthy; lights don’t work; locks don’t
work; doors can’t be secured; cells don’t have lights inside
them. Inmates since they can’t even close the doors, end up
hanging blankets down in front of them to have makeshift
privacy to their cells. Showers don’t work. Everything in the
place is torn up. It’s just a very bad mess. There’s no fire
extinguishers inside, of course, because the inmates control
that place. There are no officers who work inside the housing
units in Alpha. There are no fire hoses. There are not even fire
hoses out in the corridors, around the control room in Alpha.
That area is ill equipped across the board.
This testimony tracks the district court’s own in-person observations during
its February 2022 visit to the facility. The conditions in A-Pod at the time of
the § 3626 hearing remained as bad as ever in the above-described respects
and contributed to inter-prisoner violence.
But the district court’s findings concerning the necessity of measures
to address ongoing prisoner-violence issues were not limited to A-Pod
conditions. Rather, the district court attributed much of the prisoner-
violence problem to the jail’s broader staffing issues.
As of January 2022, RDC staffing was at an “all-time low,” with only
191 officers—“58% (or less) of the minimum level identified [as necessary for

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RDC] by experts.” A jailer’s “disregard” for “precautions he kn[ows]

should be taken” supports a finding of deliberate indifference. Cope v. Cogdill,
3 F.4th 198, 209 (5th Cir. 2021) (alteration in original) (quoting Jacobs v. W.
Feliciana Sheriff’s Dep’t, 228 F.3d 388, 397–98 (5th Cir. 2000)). Moreover,
the district court found that the jail lacks a “robust rounds system” or an
officer’s station in A-Pod—again, the most dangerous wing of RDC. Further
still, the court found, the County had failed to retain a qualified jail
administrator. In a July 2021 incident, for example, a detainee was found
bleeding after he had been stabbed seventeen times, and no officer was in the
housing unit when the assault occurred.
RDC’s staffing as of January 2022 was especially ill-equipped to
prevent violence in view of the facility’s design. RDC was designed to be a
direct-supervision jail, which “requires placing detention officers inside
housing units, where such officers have continuous direct contact with
prisoners and are not routinely separated from prisoners by physical
barriers.” However, the Jail ceased operating as a direct-supervision facility
in 2012, when a major riot occurred, after which staff were no longer placed
full time in each of the units. In January 2022, for instance, for at least one
weekend, RDC assigned only one officer to each housing pod, meaning that
“each officer supervised about 250 detainees via video surveillance,
exclusively.” The former jail administrator testified that this under-
assignment happens regularly, even though protocol requires that at least five
officers monitor a pod at any given time. The district court found that this
lack of direct supervision contributes to gang problems and assaults at RDC
and that officers are often unaware of problems within the jail—such as the
October 2021 death, which an inmate brought to an officer’s attention hours
after the fact. In light of all this, the district court held that it was
unconstitutional for RDC not to be operated as a direct-supervision facility

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and that the County, by failing to do so, was deliberately indifferent to the
direct-supervision problem.
The County, for its part, argues that it responded reasonably to the
prison’s problems by increasing the salary for detention officers, making
other improvements in the pay system, and hiring more staff. In addition to
issuing a COVID pay supplement, for instance, the County twice increased
the permanent salary for detention officers—once through a 5% increase in
late 2021 and again by increasing the starting salary for detention officers to
$31,000 in early 2022. In addition, the County made a series of changes to its
officer-payment system, streamlining the process through which officers
receive payment, approving overtime positions at the jail, and employing a
recruiting coordinator.
A reasonable response to inadequate prison conditions is indeed
sufficient to prevent a deliberate-indifference finding even if the County’s
attempts were unsuccessful or if the County did not choose the optimal
approach to the problem. See Farmer, 511 U.S. at 844–45. However, the
County had not yet implemented its above-described pay raises as of the
evidentiary hearing. And, as for RDC supposedly hiring more staff, the
record reflects that staffing issues have only worsened at RDC over the
relevant time period, illustrated by a November 2021 staff walkout that left
only a few people working inside the jail. In short, the record reflects that the
County did not take reasonable steps to remedy the prison-violence issue
during the relevant time period.
In view of the foregoing, we conclude that the district court correctly
held that both the conditions in A-Pod and RDC’s systemic staffing issues
demonstrated the County’s deliberate indifference toward inmate safety.
The district court therefore properly retained its provisions regarding inter-
prisoner violence in the new injunction. As to the specific requirement that
the jail be overseen by a qualified jail administrator and that the County

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implement direct supervision, we have previously upheld a court order that

enjoined equally specific staffing decisions, namely by mandating “specific
numbers of guards on duty on each floor for each shift.” Alberti, 790 F.2d at
1227. Alberti was decided before the PLRA was enacted, but it still required
narrow tailoring and the use of “the least intrusive remedy.” Id. (internal
quotations omitted). In light of Alberti, therefore, the district court’s
imposition of a jail administrator and mandated direct supervision is likewise
proper.
2. Use of Force
Next, the injunction contains several provisions regarding the use of
force by jail officials against inmates and how RDC prepares for and responds
to such incidents. 7 In justifying its continued injunction as to use of force, the
district court cited, inter alia, RDC officials’ misuse of tasers, including an
October 2021 incident in which officers tased a prone inmate to coerce him
into submission. It is true that the October 2021 tasing was apparently a one-
off incident and that establishing deliberate indifference normally requires a
plaintiff to “allege a pattern of similar constitutional violations by untrained
employees.” Hutcheson v. Dallas County, 994 F.3d 477, 482 (5th Cir. 2021)
(internal quotations omitted) (citation omitted). But Alberti and progeny
instruct that we employ a “totality of conditions” test. Alberti, 790 F.2d at
1224. And, looking beyond the sole reported instance of excessive force at
RDC, we observe a lack, or inadequacy, of use-of-force training.

_____________________
7
As it must, this opinion reviews each respective provision of the challenged
injunction for compliance with § 3626(b)(3). See Ruiz, 243 F.3d at 950. We do, however,
consolidate certain related provisions for ease of analysis, namely, “Use of Force
Standards,” “Use of Force Training,” and “Use of Force Reporting,” all of which we
analyze in a collective section titled “Use of Force.”

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For example, as the district court found in its April 2022 contempt-
sanction order, new hires historically “do not receive use-of-force training
prior to beginning work at RDC,” and instead receive only “roll call
training”—that is, informal training that occurs ad hoc “when officers
discuss new policies while transitioning between shifts.” 8 Nor does the
County employ any scenario-based training on the use of tasers. Yet,
notwithstanding the historic lack of officer training on the use of force at RDC
(either generally or taser-specific), the Jail issued a directive in January 2022
to issue tasers to supervisors.
With respect to reporting on instances of excessive force, the district
court found that supervisors often fail to review incident reports concerning
the use of force and that staff often fail to submit such reports. Furthermore,
among the district court’s findings on actual uses of force was the following
incident: “officers armed with beanbag gun[s] shot a sleeping detainee ‘in the
face and in the stomach’ because he did not rise for a shakedown conducted
at ‘two or three o’clock’ in the morning.”

_____________________
8
Granted, testimony at the evidentiary hearing indicated that “[a]ll new officers
now receive eight hours of [use-of-force] training in the basic recruit academy,” including
“a continuum of appropriate force responses to escalating situation[s], de-escalation tactics
and defensive tactics.” Testimony likewise reflected that the County’s Internal Affairs
Division enforces the use-of-force policy at RDC, and documentary evidence showed that
the jail requires officers, after every use of force, to complete an “accurate and detailed”
use-of-force report preceding a review of the event. But the district court ultimately found
that no such requirements exist in practice and noted, based on record evidence, that the
actual training that new hires receive is not use-of-force training but rather roll-call training,
which lasts just a few minutes. Where a district court makes findings of fact, we do not
privilege record testimony over those findings unless the testimony clearly contradicts the
findings. See, e.g., United States v. Bass, 10 F.3d 256, 259 (5th Cir. 1993) (“Because we
cannot say that the district court’s credibility choices and fact findings are clearly
erroneous, we must decline the defendant’s invitation to credit his testimony.”). That
precept applies equally to each section of the district court’s injunction.

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Once again, each of these findings is subject to a clear-error standard.

The County’s proffered evidence on this subject, while relevant, does not
render clearly erroneous the district court’s findings, which are both
thorough and supported by ample record evidence. In view of the foregoing,
conditions at RDC indeed reflect a jail-wide constitutional violation with
respect to use of force.
3. Incident Reporting and Review
As the district court observed, “neither the Constitution nor federal
law mandates” that prisons utilize “reporting mechanisms or effective
review of episodic events.” Nevertheless, the district court retained some
provisions regarding incident reporting and review on the basis that the
failure to complete reports contributes to inmate violence at RDC. In support
of that provision, the district court cited an instance where an inmate had
been assaulted three times—including two stabbings—but was nevertheless
returned to the same housing unit in which the violence occurred (granted,
the district court did observe that officers created incident reports for the two
stabbings). Although that incident appears to bear more on the facility’s
failure to protect than on incident reporting per se, the decision to return the
inmate to the same unit in which the violence occurred also reflects
inadequate post-incident review procedures.
Indeed, the district court found a lack of after-action reviews at RDC
generally and concluded that the few after-action reviews that RDC officials
did undertake revealed deficiencies in the prison’s incident-reporting and -
review procedures. In support of and consistent with that finding, testimony
reflected that reports from RDC were described as “inept,”
“unintelligible,” and “incomplete,” with the witness adding that he had
“never read worse incident reports than what [he] routinely read in Hinds
County.” The October 2021 death, for instance, revealed many such
deficiencies and led to the firing of three officers.

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c/w Nos. 22-60301, 22-60332, 22-60527, 22-60597

In light of the foregoing, Alberti’s totality-of-the-circumstances test

counsels in favor of allowing the incident-reporting provisions to remain in
place.
4. Sexual Assault
Next, the injunction contains provisions concerning sexual assault.
The district court noted that, although the County generally has improved in
its compliance with the Prison Rape Elimination Act, 34 U.S.C. § 30301 et
seq. (PREA), the PREA coordinator went on leave for several months (from
mid-July to December 2021), leaving no one to cover her responsibilities.
During this time, a number of PREA incidents occurred, which largely went
unreported and uninvestigated. Otherwise, the district court cited as
justification for the continued injunction on sexual-assault-related conditions
at RDC the generally unsafe nature of the jail, especially the A-Pod—for
example, the lack of lighting, working locks, and staff—as well as one instance
of sexual assault that took place at the youth center in October 2021.
The PREA coordinator did return from leave, however, in January
2022—months prior to the district court’s April 2022 order—and nothing in
the record reflects PREA-noncompliance outside of the window where the
coordinator went on leave. Further, as explained above, much of the district
court’s justification for retaining its sexual-assault-related provisions in the
new injunction refer to the general risk of violence at RDC, which the
injunction addresses in detail, and not sexual assault specifically.
In view of the foregoing, although the record reflects PREA-related
constitutional violations in the twelve months prior to January 2022, the
record does not reflect that any PREA-related constitutional violations that
had occurred at RDC were “current and ongoing” as of the time termination
was sought. Accordingly, we reverse the injunction on these points and
remand for further proceedings to remove the PREA-related provisions and
set the boundaries of continued compliance monitoring.

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5. Investigations
Next, the injunction retained a provision regarding investigations by
prison officials. In support of continued prospective relief on this issue, the
district court cited the lack of functioning cameras necessary to aid
investigations and the inadequacy of both investigatory staffing and
procedures.
On the first point, the inter-prisoner violence section above, see supra
Section III.A.1, describes the continued dearth of functional cameras in the
County’s prison facilities. On the second point, some background: The
Hinds County Sheriff’s Office has two investigative divisions. The Criminal
Investigation Division (CID) “is intended to investigate criminal activity,
typically involving an inmate that’s being investigated.” And the Internal
Affairs Division (IAD) “involves investigati[on] of staff persons regarding
potentially criminal activity, but also violations of policy and procedure.”
Evidence adduced at the hearing reflected that the quality of RDC
investigations was suspect during the relevant time period. For instance,
expert testimony indicated that CID investigations “have improved over the
years” but, as of the hearing, were “still not very thorough.” And
“[c]onsidering the significant number of assaults, the fact that none [of the
investigations] resulted in a criminal indictment is unusual.” This lack of
follow-up action, despite the reports of widespread inter-prisoner violence,
suggests that the CID’s investigatory procedures remain inadequate.
As for the IAD, expert testimony revealed that “it’s very difficult”
for IAD to track ongoing investigations because staff “sometimes don’t get
any reports and sometimes get [them] very, very late.” This failure to track
investigations through consistent reports “certainly impacts the ability for
that staff to take appropriate corrective or remedial action.” To make matters
worse, on November 30, 2021, the County’s sole IAD investigator resigned.
In his letter of resignation, he stated that he worked “long and hard to try to

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keep up with the workload,” “with tireless effort,” “even though this work
should have three people to get everything done in a proper time.” As of the
date of the evidentiary hearing, therefore, there was no IAD investigator,
although a different employee was slated to fill that position.
As just one example of the inadequacy of IAD investigations, expert
testimony indicated that in the IAD investigation of a suicide in July 2021,
the report failed to mention that upon finding the inmate hanging in his cell,
a sergeant and officer delayed cutting the detainee down: “Instead of going
in and taking some action to cut him down, or do anything, they left him
hanging there and went back to the control room in Charlie where the
sergeant called up a shift commander in booking to let him know what was
going on.” The expert witness explained that this fact was quite material:
“[T]he first action should have been to take him down, and that was with a
supervisor right there.” Yet “[t]here was nothing ever written up about that
in the IAD investigation, and I questioned that. It didn’t seem to me that the
supervisor was being held accountable for his lack of action.”
The district court acknowledged that prisoners do not have a due-
process right to have their complaints investigated. Geiger v. Jowers, 404 F.3d
371, 373–74 (5th Cir. 2005). Nevertheless, it found, RDC’s failure to
investigate prior reports is actionable when such failure contributes to
unconstitutional conditions at the jail. The district court’s factual finding—
that RDC’s lack of a full-time investigator and the tools to complete
investigations, such as functioning cameras, contributes to the dire violence
issues at the prison—is not clearly erroneous. In view of the foregoing, we
affirm the district court’s determination that the injunction’s investigations
provision remains necessary to correct a current and ongoing constitutional
violation.

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c/w Nos. 22-60301, 22-60332, 22-60527, 22-60597

6. Grievance and Prisoner-Information Systems

Next, the injunction contains provisions concerning RDC’s systems
for prisoners to submit grievances and receive information. In support of its
continued prospective relief on this issue, the district court found that a high
number of prisoner grievances still receive no response or late responses and
that, instead, prisoners often set fires to prompt staff to pay attention to
prisoners’ complaints. The district court cited, as one example, a grievance
in which an inmate reported a stabbing and conveyed his fear of being
attacked again. “The Court finds that grievances like this—pleas for help and
ignored requests for protective custody—provide clear indications that the
recurrence of harm is obvious, predictable, and likely.”
For similar reasons as the reporting and investigations requirements,
the district court’s conclusion that the inadequate grievance procedures
contributed to the jail-wide violence problems at RDC is not clearly
erroneous. Accordingly, the Alberti totality-of-the-circumstances framework
supports the continued inclusion of this provision in the injunction.
7. Segregation
Next, we evaluate the injunction’s provisions on so-called
“segregation cells,” which are used to house prisoners with unique issues
separate and apart from the general population, and “booking cells,” which
are meant to be occupied only temporarily.
“Segregation, also referred to as isolation, is a single-cell housing
area” comprised of high-security inmates and inmates with serious mental
illnesses. Inmates in single-cell housing areas are let out of their cells for just
one hour per day to shower and to use the telephone and then return to their
cells for the remaining twenty-three hours. Booking cells, by contrast, “were
designed to hold people for no more than eight hours.” They have no
recreation area or visitation space, and there is only one shower that services

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the whole area, and it is not conveniently accessible. Simply put, booking cells
are “not designed for housing[.]”
Nonetheless, RDC uses booking cells as long-term housing for
inmates with serious mental health issues. The district court further found
that two deaths occurred in booking cells in 2021 and that welfare checks for
inmates housed in these isolated units—although theoretically required
every fifteen minutes in booking and every thirty minutes in segregation—
are being performed inadequately, if at all. As for the segregation cells, prison
officials acknowledged their concern that inmates in segregation “were not
receiving their meals and access to hygiene support,” and a January 2022
report reflected that nursing staff found two seriously mentally ill detainees
in segregation covered in feces and sores and having lost significant weight.
In light of these conditions, and the fact that mental-health needs, like
physical needs, enjoy Eighth Amendment protection, see Gates, 376 F.3d at
332, the consent-decree provisions retained by the district court focus on
weekly mental-health rounds for prisoners in segregation units, developing
and implementing restrictions on the segregation of prisoners with serious
mental illness, and documenting the placement in and removal of prisoners
from segregation.
We conclude that inclusion in the injunction of the provisions
concerning the booking and segregation cells is proper.
8. Youth Detention
The County does not challenge the provisions relating to the youth-
prisoner center.
9. Over-Detention
With respect to the injunction’s provisions on over-detention,
including imprisonment without a lawful basis for detention, the district
court found that “Hinds County has not reached sustained or substantial

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compliance with any of the Consent Decree provisions protecting persons

from unlawful detention.” The district court cited in support of that
conclusion, inter alia, a lack of a functional database to monitor when exactly
inmates must be released and unexplained delays in executing releases. The
district court further found that “persons released by the court are returned
to RDC, instead of being released immediately.”
The County appears not to dispute that RDC held detainees after they
became eligible for release and that this over-detention resulted from the
County’s subpar information-sharing systems. The County merely argues
that this over-detention constitutes negligence and not deliberate
indifference. But the district court explained, citing analogous Fifth Circuit
caselaw, why communication errors that cause detainees to languish in jail
for months amount to Eighth Amendment violations. The County fails to
explain why the district court’s finding on this matter was clearly erroneous
or why the district court’s application of law was wrong.
In light of the district court’s factual findings and legal conclusions
and the County’s failure to explain its challenge to the same, we affirm the
district court’s decision to retain the provisions regarding over-detention.
B.
Next, we consider whether the district court’s appointment of a
receiver constitutes an appropriate sanction for contempt in this case and, if
so, whether the scope of that receivership is proper. We hold in the
affirmative on the first question and in the negative on the second question.
We “review a district court’s appointment of a receiver for an abuse
of discretion.” Netsphere, Inc. v. Baron, 703 F.3d 296, 305 (5th Cir. 2012). In
evaluating such an appointment, we “will not substitute our judgment for
that of the district court,” United States v. City of Jackson, 359 F.3d 727, 731
(5th Cir. 2004), and will find an abuse of discretion only if the trial court
“(1) relies on clearly erroneous factual findings when deciding to grant or

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deny the [prospective relief,] (2) relies on erroneous conclusions of law when
deciding to grant or deny the [prospective relief,] or (3) misapplies the factual
or legal conclusions when fashioning its [prospective] relief,” Ball v. LeBlanc,
792 F.3d 584, 598 (5th Cir. 2015) (internal quotations omitted) (quoting
Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 254 (5th Cir.
2014)); see also Gates, 376 F.3d at 333 (“If a constitutional violation is found,
we employ an abuse of discretion standard in reviewing the equitable remedy
itself.”).
“If government fails to fulfill” its responsibility to provide prisoners
with “basic sustenance, including adequate medical care,” then “the courts
have a responsibility to remedy the resulting Eighth Amendment violation.”
Brown, 563 U.S. at 511. Although “[c]ourts must be sensitive to the State’s
interest in punishment, deterrence, and rehabilitation, as well as the need for
deference to experienced and expert prison administrators faced with the
difficult and dangerous task of housing large numbers of convicted
criminals,” “[c]ourts may not allow constitutional violations to continue
simply because a remedy would involve intrusion into the realm of prison
administration.” Id. To be sure, “the scope of a district court’s equitable
powers” to craft a remedy for constitutional violations uncorrected by state
or local authorities “is broad, for breadth and flexibility are inherent in
equitable remedies.” Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S.
1, 15 (1971); see also Brown, 563 U.S. at 538 (same).
1.
First, we consider the appropriateness of appointing a receiver to
address the above-described constitutional violations. We conclude that
receivership appointment is an appropriate sanction here to remedy the
County’s repeated failures to ensure constitutional prison conditions. See In
re Bradley, 588 F.3d 254, 265 (5th Cir. 2009) (“In McComb, the Court
described civil contempt in broad terms, encompassing sanctions that

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prevent ‘experimentation with disobedience of the law,’ and remedial

powers ‘determined by the requirements of full remedial relief,’ as necessary
‘to effect compliance with [the court’s] decree.’” (alteration in original)
(quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 192, 193 (1949))).
“Courts faced with the sensitive task of remedying unconstitutional
prison conditions must consider a range of available options, including
appointment of special masters or receivers and the possibility of consent
decrees.” Brown, 563 U.S. at 511. A receiver is someone who is “appointed
by the court to take over the day-to-day management of a prison system or a
segment of it.” Plata v. Schwarzenegger (Plata II), 603 F.3d 1088, 1094 (9th
Cir. 2010). The Fifth Circuit has recognized the availability of receiverships
“in the context of ensuring a governmental entity’s compliance with court
orders.” Baron, 703 F.3d at 306. Nonetheless, a receivership in any context
is an “extraordinary remedy that should be employed with the utmost
caution.” Id. at 305 (quoting 12 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2983 (3d ed.
2012)). The PLRA’s requirement of need-narrowness-intrusiveness findings
applies to any prospective relief, which would include a receivership
appointment. See 18 U.S.C. § 3626(a)(1)(A).
Courts have appointed receivers to administer prisons where
unconstitutional conditions persist despite repeated orders to remediate. In
Plata v. Schwarzenegger (Plata I), for instance, the district court ordered a
receiver to manage the delivery of medical services to California state
prisoners. See No. 01–1351, 2005 WL 2932253, at *33 (N.D. Cal. Oct. 3,
2005). The Ninth Circuit affirmed this order, citing, inter alia, the numerous
courts that have appointed receivers to oversee prison conditions in light of
widespread and continued constitutional violations in prison conditions.
Plata II, 603 F.3d at 1093–98 (citing Inmates of D.C. Jail v. Jackson, 158 F.3d
1357, 1359 (D.C. Cir. 1998); Newman v. Alabama, 466 F. Supp. 628, 635

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(M.D. Ala. 1979); Shaw v. Allen, 771 F. Supp. 760, 763–64 (S.D. W. Va.
1990); and Wayne Cnty. Jail Inmates v. Wayne Cnty. Chief Exec. Officer, 444
N.W.2d 549, 560–61 (Mich. Ct. App. 1989)); see also Crain v. Bordenkircher,
376 S.E.2d 140, 143–44 (W. Va. 1988) (appointing receiver to oversee closing
of West Virginia penitentiary and construction of new facility).
Here, like in the above cases, the district court concluded that a
receivership was necessary to remedy current and ongoing constitutional
violations in the operation of state facilities and programs. In so holding, the
district court relied on the seven factors outlined in Plata I, 2005 WL
2932253, at *23. These factors are: (1) “[w]hether there is a grave and
immediate threat or actuality of harm”; (2) “[w]hether the use of less
extreme measures of remediation have been exhausted or prove futile”;
(3) “[w]hether continued insistence [on] compliance with the Court’s orders
would lead only to confrontation and delay”; (4) “[w]hether there is a lack
of leadership to turn the tide within a reasonable period of time”;
(5) “[w]hether there is bad faith”; (6) “[w]hether resources are being
wasted”; and (7) “[w]hether a receiver is likely to provide a relatively quick
and efficient remedy.” Id. In applying these factors, the district court
determined that they weigh in favor of appointing a receiver.
We conclude that this holding is not an abuse of discretion, cf. Baron,
703 F.3d at 305, for the reasons that we explored above in Section III.A.
Although “federalism concerns are particularly acute in the context of prison
management” and “[f]ederal judges are particularly ill-equipped to manage
state prisons,” Valentine v. Collier, 993 F.3d 270, 294 (5th Cir. 2021)
(Oldham, J., concurring), the appointment of receivers by federal courts does
not automatically trigger federalism concerns, and in fact, the Supreme Court
has blessed receiverships that comply with the limitations of the PLRA. See
Brown, 563 U.S. at 511, 530–41.

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The PLRA instructs that any prospective relief must be “narrowly

drawn,” “extend[] no further than necessary to correct the violation of the
Federal right,” and serve as “the least intrusive means necessary to correct
the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). We explained
above, see supra Section III.A, the severity and immediacy of the current and
ongoing constitutional violations at RDC, the failure of less extreme
measures to ensure inmate safety, the need for compliance with the court’s
orders, and the lack of leadership at RDC necessary to ensure compliance.
Moreover, the district court considered other remedies, such as financial
penalties or closing A-Pod, and concluded that financial penalties would be
ineffective and that an order to close A-Pod was too extreme. There is also
nothing specific to A-Pod in the new injunction, so closing A-Pod would not
be well-tailored toward addressing the constitutional violations that serve as
the basis for the new injunction. Given the foregoing considerations, the
district court properly determined that appointing a receiver under these
circumstances “extend[ed] no further than necessary to correct the violation
of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C.
§ 3626(a)(1)(A).
In light of those determinations, and consistent with the trial court’s
thorough opinion, we conclude that the district court did not abuse its
discretion by ordering a receivership.
2.
Finally, we consider whether the scope of the receivership was proper.
We conclude that providing the receiver authority over the budget and
related financial matters was not proper and that the district court’s need-
narrowness-intrusiveness analysis was not sufficiently specific as to the
different powers given to the receiver.

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Here, the district court granted the receiver broad-reaching authority

over administration of the state facilities and programs at RDC. Specifically,
per the governing injunction in this case, the receiver shall:

• “hold and exercise all executive, management, and

leadership powers for the defendants with respect to the
custody, care, and supervision of Hinds County detainees
at RDC, including the power to admit, book release,
transfer, and supervise detainees at RDC in a
constitutional manner”;
• “be in day-to-day charge of RDC operations”;
• “have the duty to control, oversee, supervise, and direct
all administrative, personnel, financial, accounting,
contractual, and other operational functions for RDC”;
• “determine the annual RDC budget, including for staff
salaries and benefits, medical and mental health services
(including the medical provider contract), physical plant
improvements, fire safety, and any other remedies needed
to address the constitutional deficiencies documented in
this case”; and
• “establish personnel policies” and “negotiate new
contracts and to renegotiate existing contracts.” 9
The district court also required that the County “bear all costs and
expenses of establishing and maintaining the Receivership, including, as
necessary, budgeted rent, office supplies, reasonable travel expenses, and the
compensation of the Receiver and their personnel.” This includes “salaries
and consulting fees” for an uncapped number of staff.
The receiver’s control over the budget and salaries and benefits for
personnel essentially allows the receiver to dictate the state’s authority over

_____________________
9
The district court’s order caveats that “[t]he Receiver’s authority and decisions
are subject to review by the Court.”

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22-60203
c/w Nos. 22-60301, 22-60332, 22-60527, 22-60597

RDC by controlling the purse strings. See Valentine, 993 F.3d at 294–95
(Oldham, J., concurring). Giving the receiver power to set RDC’s budget,
subject to the district court’s approval, would allow the receiver to ignore the
budgetary constraints that the Hinds County Board of Supervisors has had to
deal with in managing RDC. This goes beyond the limitations imposed by the
PLRA. Guajardo, 363 F.3d at 394 (“[The PLRA’s] ‘fundamental purpose’
was to extricate [federal courts] from managing state prisons.”). Not only
could this “burden . . . the government’s budget,” but it would also “assume
a responsibility that should be left for the legislature.” Valentine, 993 F.3d at
294–95 (Oldham, J., concurring) (alteration in original) (cleaned up) (quoting
Valentine v. Collier, 490 F. Supp. 3d 1121, 1174 (S.D. Tex. 2020), rev’d, 993
F.3d 270). The federal intrusion into RDC’s budget is compounded where,
like here, the receivership has no end date. Guajardo, 363 F.3d at 394 (“The
PLRA strongly disfavors continuing relief through the federal courts . . . .”).
The receivership “will end as soon as the Court finds that Defendants have
remedied [the Jail’s] unconstitutional conditions and achieved substantial
compliance with the Court’s Orders.”
Aside from the concern with the receiver’s power over the budget and
financial matters, there is a related concern applicable to the scope of all of
the receiver’s powers: The district court’s failure to conduct a sufficient
need-narrowness-intrusiveness analysis. On October 21, 2022, the district
court entered an order explaining the scope of the receivership. That order
did not include any reference to the need-narrowness-intrusiveness analysis.
The Government then moved for clarification that the scope of the
receivership was in fact “necessary to remedy contempt and ongoing

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22-60203
c/w Nos. 22-60301, 22-60332, 22-60527, 22-60597

constitutional violations.” The district court granted the motion 10 and

drafted a second order.
The district court’s analysis of the need-narrowness-intrusiveness
requirement, however, barely did more than its initial order: At the end of the
second order, the district court summarily concluded that the receiver’s
duties satisfy the PLRA’s need-narrowness-intrusiveness requirements. The
court did not explain this finding in any detail, nor did it discuss whether it
would be feasible to institute a receivership with more limited powers that
cover only the scope of the constitutional violations. The Supreme Court
“has rejected remedial orders that unnecessarily reach out to improve prison
conditions other than those that violate the Constitution.” Brown, 563 U.S.
at 531. The PLRA requires that “the scope of the order must be determined
with reference to the constitutional violations established by the specific
plaintiffs before the court.” Id. The district court asserted this finding in a
conclusory manner and failed to give the necessary explanation and
justification to support it.
We therefore instruct the district court on remand to reevaluate de
novo the scope of the receivership consistent with this opinion. The district
court cannot grant the receiver power over RDC’s budget and related
financial matters, such as salaries and benefits, and the court should develop
a new description of the receiver’s powers after conducting a need-
narrowness-intrusiveness analysis and in light of the receiver’s loss of control
over the budget and salaries.

_____________________
10
Before the district court granted the motion, the County appealed the district
court’s original order. This court remanded the case in part “to allow the district court to
rule on the motions to clarify.”

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22-60203
c/w Nos. 22-60301, 22-60332, 22-60527, 22-60597

IV.
For the foregoing reasons, we AFFIRM in part, REVERSE in part,
and REMAND for further proceedings consistent with this opinion.
Specifically, we affirm the district court in all respects except for those
described in Sections III.A.4 and III.B.2 of this opinion.

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22-60203
c/w Nos. 22-60301, 22-60332, 22-60527, 22-60597

Leslie H. Southwick, Circuit Judge, concurring:

This appeal was assigned to a three-judge panel. On the day before
oral argument, one judge of the panel recused. Argument was presented to
the remaining two judges. This separate opinion addresses the validity of two
judges’ hearing the oral argument and then deciding the appeal.
By statute, a majority of the judges on a panel constitutes a quorum.
28 U.S.C. § 46(d). A quorum of judges may “legally transact judicial
business.” Tobin v. Ramey, 206 F.2d 505, 507 (5th Cir. 1953) (analyzing
Section 46(d)). Precisely when three may become two was discussed by the
Supreme Court in an opinion that quoted our Tobin opinion. Nguyen v.
United States, 539 U.S. 69, 82 n.14 (2003). I review that discussion.
The Nguyen Court analyzed this statutory language: circuit courts of
appeals “may authorize the hearing and determination of cases and
controversies by separate panels, each consisting of three judges, at least a
majority of whom shall be judges of that court.” Id. at 82 n.16 (quotations
omitted) (quoting 28 U.S.C. § 46(b)). The Court held that Section 46(b)
“requires the inclusion of at least three judges in the first instance.” Id. at
82. Requiring three judges “in the first instance” was a phrase used in a
Second Circuit opinion cited by the Court, which had quoted the phrase from
the Senate Report on what became the Federal Courts Improvement Act of
1982. Id. at 82-83 (citing Murray v. Nat’l Broadcasting Co., 35 F.3d 45, 47 (2d
Cir. 1994) (quoting S. Rep. No. 97-275, at 9 (1981), as reprinted in 13404
U.S. Cong. Serial Set (1981))). 1

_____________________
1
This court often holds that legislative history, of which a Senate Report is a
component, is unreliable. See, e.g., Texas Democratic Party v. Abbott, 978 F.3d 168, 185 (5th
Cir. 2020). Nonetheless, the Murray court quoted this Report, and the Supreme Court
took the “first instance” phrase from Murray. Nguyen, 539 U.S. at 82–83. The Report
lamented: “Existing provisions in section 46 also permit appellate courts to sit in panels of

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The Supreme Court agreed with the Second Circuit that “Congress
apparently enacted [the 1982 revision of] § 46(b) in part ‘to curtail the prior
practice under which some circuits were routinely assigning some cases to
two-judge panels.’” Id. (quoting Murray, 35 F.3d at 47). The “prior
practice” was that some circuit “courts have used panels of two judges for
_____________________
less than three judges.” S. Rep. No. 97-275, at 27. Therefore, the bill “amends 28 U.S.C.
§ 46(b) to require that all decisions be reached by at least three judges.” Id. The Report,
dated November 18, 1981, stated the amendment was in “Subsection (b) of section 204”
of the bill. Id. The bill of that date had no Section 204(b). See Federal Courts Improvement
Act of 1981, S. 1700, 97th Cong. (Nov. 18, 1981). The only revision to Section 46(b) in that
bill was by Sections 103(b) and 205[(a)], each amending the wording that the “court may
authorize the hearing and determination of cases and controversies by separate divisions,
each consisting of three judges.” S. 1700, §§ 103(b), 205[(a)]; 28 U.S.C. § 46(b) (1948)
(amended 1978 and 1982). The bill substituted “panels” for “divisions.” S. 1700, §§
103(b), 205[(a)]. That change appeared in the Act. See Federal Courts Improvement Act
of 1982, Pub. L. 97-164, § 103 (b), 96 Stat. 25 (1982).
“Divisions” was the word the Judicial Code of 1948 used to clarify the statutory
phrase that “a circuit court of appeals . . . shall consist of three judges,” language adopted
in 1891 when all but one circuit had only two circuit judges and a circuit justice or district
judge would complete a “court”; after almost all circuits had more than three judges, it
was useful to distinguish between the full “court” and a three-judge “division” that heard
a case. See Alexandra Sadinsky, Redefining En Banc Review in the Federal Courts of Appeals,
82 Fordham L. Rev. 2001, 2009, 2011 (2014); 28 U.S.C. § 46, Historical Notes. The
1981 Senate Report did not indicate that substituting “panels” for “divisions” would bar
two-judge panels; instead, that change removed ambiguity in “the use of the terms ‘panel’
and ‘division,’ especially following authorization of ‘administrative divisions’ in section 6
of P[ub]. L. No. 95–486 in 1978.” S. Rep. No. 97-275, at 26.
The 1981 Report’s stating that Section 46(b) would require at least three judges
may be a remnant of the approach of a similar but failed bill in the preceding Congress that
would have added “at least” before “three judges” in Section 46(b) (and left “divisions”)
and substituted “at least” for “not more than” in Section 46(c). Federal Courts
Improvement Act of 1979, S. 1477, 96th Cong. §§ 112(a)–(b) (Aug. 3, 1979). Section 46(c)
then and now states: “Cases and controversies shall be heard and determined by a court or
panel of not more than three judges.” 28 U.S.C. § 46(c).
The 1981 Senate Report did not clearly explain what barred two-judge panels. Text
controls, anyway. Section 46(b) states that cases are to be heard and decided by panels
“consisting of three judges.” The requirement of three judges is clear; so is Nguyen.

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Case: 22-60203 Document: 195-1 Page: 36 Date Filed: 10/31/2024

motions and for disposition of cases in which no oral argument is permitted

because the case is classified as insubstantial.” S. Rep. No. 97-275, at 9.
Conversely, the Court found it to be “clear that the statute was not
intended to preclude disposition by a panel of two judges in the event that
one member of a three-judge panel to which the appeal is assigned becomes
unable to participate.” Nguyen, 539 U.S. at 83 (quotations omitted) (quoting
Murray, 35 F.3d at 47). For that clarity, the Murray court quoted the Senate
Report on the 1982 legislation, part of which we earlier quoted:
The circuit courts could continue to adopt local rules
permitting the disposition of an appeal in situations in which
one of the three judges dies or becomes disabled and the
remaining two agree on the disposition; but, in the first instance,
all cases would be assigned to . . . panel[s] of at least three
judges.
Murray, 35 F.3d at 47 (emphasis added in Murray opinion) (quoting S. Rep.
No. 97-275, at 9). Murray held that even though the Senate Report lists
death and disability, “unavailability because of late-discovered
disqualification” would be an equally justifiable basis for a quorum. Id.
Murray also held that there is no reason for a “distinction between
unavailability occurring before and after oral argument.” Id. The statutory
text supports both conclusions.
In summary, this appeal was initially assigned to a three-judge panel.
On the eve of oral argument, one judge determined he must recuse. Because
the initial assignment was to a three-judge panel, it is proper after a recusal
for a two-judge quorum of that panel to decide this case.

36