Robertson et al v. Collier et al

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS
MARK ROBERTSON,
GEORGE CURRY,
TONY EGBUNA FORD,
RICKEY CUMMINGS, and
LUCKY WARD,
Plaintiffs,
versus
BRYAN COLLIER,
BOBBY LUMPKIN,
DANIEL DICKERSON,
CRYSTAL ANTHONY,
DOES 1-10, and
RONALD IVEY,
Defendants.
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CASE NO. 9:23-CV-00023-MAC
MEMORANDUM AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Plaintiffs bring this action on behalf of themselves and all other similarly situated
individuals (“Class Members”) incarcerated on death row at the Allan B. Polunsky Unit
(“Polunsky Death Row Unit” or “Polunsky Unit”), a facility operated by the Texas Department
of Criminal Justice, pursuant to 42 U.S.C. § 1983. Plaintiffs filed their Original Complaint on
January 26, 2023, in the Southern District of Texas, Houston Division, and it was transferred to
the Eastern District of Texas, Lufkin Division, on January 30, 2023. Dkt. #1, 7. Plaintiffs filed
an Amended Complaint against Defendants on May 11, 2023, seeking relief under 18 U.S.C. §
3599, 28 U.S.C. §§ 2202, 2254, and 2255, Article 11.071(a) of the Texas Code of Criminal
Procedure, the Texas Constitution, and 42 U.S.C. § 1983. Dkt. #22. Defendants filed a Motion
to Dismiss Plaintiffs’ Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1)
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and 12(b)(6) on July 10, 2023 (Dkt. #29), and Plaintiffs filed a response on August 9, 2023 (Dkt.
#32). The court referred the matter to United States Magistrate Judge Zack Hawthorn for
consideration and recommended disposition. Judge Hawthorn issued his report recommending
dismissal, in part, on October 8, 2025. Dkt. #58. Defendants filed timely objections (Dkt. #62)
and the Plaintiffs responded (Dkt. #63). The court considered the objections, conducted a de
novo review, and finds no reason to depart from the magistrate judge’s recommended
disposition. Accordingly, the court overrules the objections and adopts the magistrate judge’s
report and recommendation.
I. BACKGROUND
Plaintiffs’ Amended Complaint alleges:
Defendants’ policy and practice of automatically placing all death row prisoners
at the Polunsky Death Row Unit in unsafe and unhygienic conditions of
permanent solitary confinement has deprived, and continues to deprive, Plaintiffs
and Class Members of their constitutional right to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments of the U.S.
Constitution. Specifically . . . Defendants’ policies and practices are cruel and
unusual because they deprive prisoners in the Polunsky Death Row Unit of the
minimal civilized measure of life’s necessities and inflict unnecessary and wanton
pain that has resulted—and, without court intervention, will continue to result—in
severe psychological and physical injury to Plaintiffs and Class Members.
Dkt. #22, p. 41. Defendants seek dismissal for, inter alia, Plaintiffs’ failure to adequately plead
any constitutional claims. The magistrate judge recommended that Plaintiffs lack standing to
assert claims for injunctive or declaratory relief regarding F-Pod, insects, access-to-counsel,
retaliation, showers, and mattresses. He recommended granting the motion to dismiss as to:
• claims brought pursuant to the Texas Constitution;
• Sixth Amendment claims of Right to Counsel; and
• First Amendment claims for Retaliation.
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The magistrate judge recommended denying dismissal as to Plaintiffs’:
• Eighth Amendment “conditions-of-confinement” claims of
o Permanent Solitary Confinement in Unsafe and Unhygienic Conditions; and
o Inadequate Access to Medical Care; and
• Fourteenth Amendment Due Process claims.
The magistrate judge also found that Defendants are entitled to qualified immunity on claims of
denial of due process in solitary confinement but are not entitled to qualified immunity on claims
related to conditions of confinement.
II. STANDARD OF REVIEW1
“Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to allege
enough facts to state a claim to relief that is plausible on its face and fails to raise a right to relief
above the speculative level.” Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137,
140 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)) (internal quotation
marks omitted). The Supreme Court further defined the Twombly standard, explaining that “[t]o
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570).
Objections to a magistrate judge’s report and recommendation are governed by Federal
Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), requiring written objections within 14
days and de novo review of properly objected-to portions. Conducting de novo review, the court
examines the entire record and makes an independent assessment under the law. See Alexander
v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 249 (5th Cir. 2017).
1 Neither party objects to the magistrate judge’s recommendation that Plaintiffs lack standing to assert
claims for injunctive or declaratory relief regarding F-Pod, insects, access-to-counsel, retaliation, showers, and mat-
tresses. Therefore, any challenge to that determination is waived and the court need not address the Rule 12(b)(1)
legal standard.
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III. OBJECTIONS
Defendants object to the magistrate judge’s recommendation to retain claims on (1)
Plaintiffs’ official capacity and individual capacity Eighth Amendment conditions-of-
confinement claims for equitable relief and monetary damages, respectively; and (2) Plaintiffs’
official-capacity Fourteenth Amendment due process claims for equitable relief.2
A. Eighth Amendment Claims
The Eighth Amendment requires prison officials to provide “humane conditions of
confinement” with due regard for inmate health and safety. Valentine v. Collier, 978 F.3d 154,
162-63 (5th Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 832, 837 (1994)). To show a
violation of the Eighth Amendment, the plaintiff must prove: (1) objective exposure to a
substantial risk of serious harm; and (2) that prison officials acted or failed to act with deliberate
indifference to that risk, which resulted in extreme deprivation of the minimal civilized measure
of life’s necessities. Shannon v. Vannoy, 682 F. App’x 283, 285 (5th Cir. 2017); Gobert v.
Caldwell, 463 F.3d 339, 345-46 (5th Cir. 2006). “Some conditions of confinement may establish
an Eighth Amendment violation in combination when each would not do so alone, but only when
they have a mutually enforcing effect that produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise—for example, a low cell temperature at night
combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991) (internal
quotation marks and quoted source omitted); see e.g., Foulds v. Corley, 833 F.2d 52 (5th Cir.
1987) (inmate forced to sleep on floor with rats crawling over him alleged a viable cause of
action); Bienvenu v. Beauregard Par. Police Jury, 705 F.2d 1457 (5th Cir. 1983) (allegations of
a cold, rainy, roach-infested jail cell with inoperative toilet facilities stated a cause of action);
2 Neither party objected to the magistrate judge’s recommendation to dismiss all other claims.
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Amos v. Cain, No. 4:20-CV-7-DMB-JMV, 2021 WL 1080518, at *14 (N.D. Miss. 2021) (“A
leak, without more, does not deprive an inmate of life’s necessities. However, the Eighth
Amendment may be implicated when the leak conspires with other conditions (such as exposed
electrical wires or raw sewage) to place the safety of inmates at risk.”) (citation omitted); see
generally Rhodes v. Chapman, 452 U.S. 337 (1981) (conditions of confinement evaluated under
contemporary standards of decency). “Nothing so amorphous as ‘overall conditions’ can rise to
the level of cruel and unusual punishment when no specific deprivation of a single human need
exists.” Wilson, 501 U.S. at 305.
Plaintiffs allege that the indefinite and automatic placement of death row inmates in
restrictive housing—coupled with unsanitary, unsafe, and inhumane conditions and inadequate
medical care—violates the Eighth Amendment. Dkt. #22, p. 35-36. The magistrate judge found
the allegations, when considered collectively, satisfy Plaintiffs’ burden to adequately plead an
Eighth Amendment violation. Defendants object that the magistrate judge improperly conflates
the objective and subjective components of the Eighth Amendment claims, lumps disparate
conditions together in assessing the objective component, and improperly assumes collective
knowledge in assessing the subjective component.3 Plaintiffs respond that the magistrate judge
clearly applied the two-prong analysis (objective and subjective) and the standards prescribed in
Wilson to find that indefinite solitary confinement coupled with the “multitude of unsafe and
unhygienic conditions” and lack of medical care deprive Plaintiffs of their basic human needs.
3 Defendants offer no authority to rebut Plaintiffs’ allegations of the conditions of confinement.
Instead, they simply assert that these conditions do not rise to the necessary level for an Eighth Amend-
ment violation.
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1. Objective Component
With respect to the first prong, a plaintiff must allege an objective exposure to a
substantial risk of serious harm—that he incurred a serious deprivation of a basic human need
and the conditions were objectively sufficiently serious or extreme. Farmer, 511 U.S. at 834;
Hudson v. McMillian, 503 U.S. 1, 9 (1992); Gobert, 463 F.3d at 345. The deprivation must
involve basic human needs such as food, clothing, medical care, and safe and sanitary living
conditions—and must deny the inmate of the minimal civilized measure of life’s necessities.
Hope v. Harris, 861 F. App’x 571, 582 (5th Cir. 2021); Rhodes, 452 U.S. at 347-49. The
conditions are measured against the standards of decency that mark the progress of a maturing
society. Rhodes at 346-48.
Defendants argue that the magistrate judge erred when he “lumped disparate conditions
together to find a violation.”4 Dkt. #62, p. 3 (“The R&R (at 29-30) [improperly considered] all
of Plaintiffs’ alleged conditions together despite the fact that these conditions—mold exposure,
rotten food, insect infestations, lack of recreation, lack of mattresses, and inadequate medical
care—deprive Plaintiffs of different human needs; namely, hygiene, food, sleep, exercise, and
medical care.”). Defendants further contend that the court must determine “whether each alleged
condition is sufficiently extreme to satisfy the Eighth Amendment’s objective component.” Dkt.
#62, p. 3.
4 Defendants allege that the court should only consider conditions to which Plaintiffs have stand-
ing to sue (not insect infestations and lack of mattresses). They misstate the magistrate judge’s findings.
The magistrate judge found that Plaintiffs lack standing to sue for injunctive and/or declaratory relief for
conditions in F-Pod, insects, access-to-counsel, retaliation, showers, and mattresses. At this stage in the
litigation, these conditions are still relevant to the Eighth Amendment conditions-of-confinement claims
for compensatory relief. Moreover, Defendants offer no legal authority why these conditions should not
be considered collectively in consideration of Plaintiffs’ Eighth Amendment claims as the magistrate
judge stated in footnote 5 of his report. Accordingly, the magistrate judge’s consideration of these condi-
tions was proper.
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Defendants are correct that an amorphous complaint of poor “overall conditions” is
insufficient and that the objective inquiry requires deprivation so severe that it results in the
denial of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; Taylor
v. Riojas, 592 U.S. 7, 9 (2020) (recognizing Eighth Amendment violation where inmate was
confined for four days in a feces-covered cell and moved to a frigid cell without a bed or
working drain, forcing him to sleep in sewage). Defendants’ objection mischaracterizes the
magistrate judge’s findings. The magistrate judge expressly acknowledged that certain alleged
conditions, standing alone, might not independently violate the Eighth Amendment. Dkt. #58, p.
30 (“[U]nsavory allegations of mold, rotten food, and insect infestations might not rise to the
level necessary to state a viable Eighth Amendment Claim if considered individually.”). He
nevertheless recognized that indefinite solitary confinement, lack of recreation, and inadequate
medical care—when considered with the allegations of unhygienic exposure to mold and insects,
rotten food, and lack of showers and mattresses—deny the Plaintiffs of safe, humane, and
sanitary living conditions.5
5 Defendants argue Plaintiffs did not allege unhygienic conditions. Dkt. #22, p. 29 (“Because
Plaintiffs allege no such extreme deprivations of hygiene . . . .”). The court disagrees. Plaintiffs devote
six pages of the Amended Complaint to a section entitled “Permanent Solitary Confinement in Unsafe and
Unhygienic Conditions” (Dkt. #22, p. 17-21) (emphasis added) and describe the conditions as “unhygien-
ic” sixteen times. Id. at p. 9, 11-16 (alleging that Plaintiffs’ detention in unhygienic conditions of solitary
confinement, along with the denial of access to medical care, both caused and exacerbated their health
issues); p. 11 (“Prisoners in the Polunsky Death Row Unit are confined to tiny, unhygienic cells—often
infested with black mold, cockroaches, and other vermin—for all but a few hours per week.”); p. 15, 16
(describing Defendants’ authorization of unhygienic conditions of confinement); p. 41 (“Defendants’
policy and practice of automatically placing all death row prisoners at the Polunsky Death Row Unit in
unsafe and unhygienic conditions of permanent solitary confinement has deprived, and continues to de-
prive, Plaintiffs and Class Members of their constitutional right to be free from cruel and unusual pun-
ishment under the Eighth and Fourteenth Amendments of the U.S. Constitution.”); p. 41 (“The unsafe and
unhygienic conditions of the Polunsky Death Row Unit are evident to Defendants and to any reasonable
person.”); p. 43 (“[T]he serious physical and psychological deterioration that Plaintiffs and Class Mem-
bers in this case have suffered due to their lengthy incarcerations in unsafe and unhygienic conditions.”);
p. 45 (“[P]risoners in the Polunsky Death Row Unit spend 22 to 24 hours of their day in unhygienic cells
infested with black mold, cockroaches, and other vermin.”); p. 56 (“Defendants’ imposition of permanent
solitary confinement in unsafe and unhygienic conditions.”) (emphasis added).
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This approach is consistent with the Supreme Court’s guidance in Wilson, which provides
that conditions of confinement may violate the Eighth Amendment “alone or in combination”
when they have a “mutually enforcing effect” that deprives inmates of a single, identifiable
human need. Wilson, 501 U.S. at 304 (“Some conditions of confinement may establish an Eighth
Amendment violation ‘in combination’ when each would not do so alone, but only when they
have a mutually enforcing effect that produces the deprivation of a single, identifiable human
need such as food, warmth, or exercise—for example, a low cell temperature at night combined
with a failure to issue blankets.”); Hutto v. Finney, 437 U.S. 678 (1978) (considering the
inmate’s diet, overcrowded cells, rampant violence, vandalized cells, and lack of professionalism
on part of maximum security personnel to determine viability of Eighth Amendment claim); see
also Elder v. Bass, No. 24-30653, 2025 WL 2219005, at *2 (5th Cir. Aug. 5, 2025) (applying
“totality of the circumstances” to determine that plaintiffs satisfied the objective prong of a
conditions-of-confinement claim); Robertson v. Bass, No. 24-30395, 2025 WL 416994, at *5
(5th Cir. Feb. 6, 2025) (remanding where district court erred in dismissing suit without
permitting plaintiff to develop facts related to alleged deprivation of a functioning sewage
system and exposure to biohazardous waste); Burnette v. Bureau of Prisons, 277 F. App’x 329,
331 (5th Cir. 2007) (per curiam) (properly pled Eighth Amendment claim where plaintiffs were
“forced to share a trash bag as a toilet with an inmate who was mentally unstable” and who could
not avoid “the smell or leaking of the bagged sewerage in his indoor cell because [Bureau of
Prison] officials refused to allow the cell-mates to remove the bagged sewage and sealed the cell
door with tape”); Bienvenu, 705 F.2d at 1460 (plaintiff stated an Eighth Amendment claim when
he alleged that “the defendant party intentionally subjected him to a cold, rainy, roach-infested
facility and furnished him with inoperative, scum-encrusted washing and toilet facilities” for two
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weeks); Patterson v. MacDougall, 506 F.2d 1, 3 (5th Cir. 1975) (denying dismissal of Eighth
Amendment claims where Plaintiffs alleged their place of confinement was infested with vermin,
lacked beds and adequate lighting, and toilet facilities smeared with human waste); Jackson v.
Akwitti, No. 1:23-CV-00093-BU, 2025 WL 3759284, at *4 (N.D. Tex. Nov. 24, 2025), R&R
adopted, No. 1:23-CV-00093-H, 2025 WL 3757773 (N.D. Tex. Dec. 29, 2025) (court considered
plaintiff’s combined conditions—“rats, urine-smelling mattress, no bunk or cot, overcrowding,
backed up plumbing”—and determined they had a mutually enforcing effect of objectively
depriving plaintiff of the basic human need of safe and sanitary living conditions).
Although the magistrate judge could have more precisely connected the violative
condition(s) to the corresponding basic human need(s) it offends, the court concludes that he was
correct to consider the totality of living conditions in the context of Plaintiffs’ indefinite,
permanent, solitary confinement in unhygienic conditions and lack of medical care. See, e.g.,
Boyd v. Anderson, 265 F. Supp. 2d 952 (N.D. Ind. 2003) (denying dismissal as premature where
plaintiffs alleged they were detained in very small, filthy cells; were denied out-of-cell
recreation; were deprived of personal hygiene items; were provided inadequate ventilation and
an inadequate fire safety and smoke detection system; and were given unsanitary food). The
court agrees that the alleged conditions, taken together, satisfy the objective component of an
Eighth Amendment claim because they deprive Plaintiffs of basic human needs, including safe
and sanitary living conditions and adequate medical care.
2. Subjective Component (Deliberate Indifference)
The magistrate judge concluded that Plaintiffs adequately pled the subjective prong of
deliberate indifference by alleging that Defendants knew of and disregarded a substantial risk of
serious harm. See Farmer, 511 U.S. at 837; Hope, 861 F. App’x at 583; Cleveland v. Bell, 938
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F.3d 672, 676 (5th Cir. 2019). Specifically, the magistrate judge referenced allegations that
Defendants failed to provide safe and hygienic conditions and medical care, which they knew
would cause harm:
[Plantiffs allege] that unhygienic, unsafe, and extreme conditions at the Unit
negatively impact their overall health, and were so obvious and pervasive, that the
Defendants were aware that the conditions violated their Eighth Amendment
rights. Plaintiffs allege that the Defendants were put on notice through the
grievance process and multiple requests for medical treatment that were denied or
ignored and despite this knowledge, Defendants failed to amend their practices or
address the conditions of extreme social and sensory deprivation. Defendants’
pattern of denying routine and prescribed medical care—aggravated by the
conditions at the Polunsky Death Row unit—satisfies Plaintiffs’ burden to
adequately allege that the Defendants were deliberately indifferent to their serious
medical needs.
Dkt. #58, p. 32. In reaching this conclusion, the magistrate judge credited Plaintiffs’ allegations
of unsanitary conditions and specific instances of inadequate medical care—including withheld
medication, delayed treatment for a broken leg, and ignored requests for mental health
treatment—to find that Defendants acted with deliberate indifference by denying or ignoring
Plaintiffs’ complaints, grievances, and requests for medical care. Defendants object to this
finding, asserting that they lacked notice of the alleged risks and that “[n]one of the officials
actual responsible for responding to Plaintiffs’ grievances or medical requests have been sued,
and Defendants cannot be held vicariously liable for the unnamed officials’ actions or inactions.”
Dkt. #62, p. 4.
Contrary to Defendants’ argument, Plaintiffs allege that they submitted grievances and
complaints describing unsanitary conditions and unmet medical needs, including withheld
medication and requests for treatment that were refused, denied, or ignored. They also allege the
unsafe and hygienic conditions were pervasive and obvious—such that a reasonable official
would have been aware of the substantial risk of serious harm, but Defendants nonetheless
disregarded it in deliberate indifference to Plaintiffs’ health and safety. See Dkt. #22, p. 35, 109-
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10) (“The unsafe and unhygienic conditions of the Polunsky Death Row Unit are evident to
Defendants and to any reasonable person. Defendants have also been made aware of such
conditions through administrative grievances, written complaints, letters, national media
attention, and discussions with Plaintiffs, Class Members, and others.”)
Accepting Plaintiffs’ factual assertions as true, the court concludes that Plaintiffs allege
objective exposure to a substantial risk of harm and deliberate indifference by Defendants.
Accordingly, the court OVERRULES Defendants’ objections and ADOPTS the magistrate
judge’s recommendation to deny dismissal of Plaintiffs’ Eighth Amendment claims.
B. Fourteenth Amendment Claims
To invoke the procedural protections of the Fourteenth Amendment’s Due Process
Clause, Plaintiffs must establish two elements: first, that they were deprived of a protected
liberty or property interest; and second, that the procedures employed by the State were
constitutionally inadequate. Swarthout v. Cook, 562 U.S. 216, 219 (2011) (per curiam);
Wilkerson v. Goodwin, 774 F.3d 845, 855 (5th Cir. 2014). Defendants object that the magistrate
judge erred in finding that Plaintiffs6 have a liberty interest in avoiding their current housing and
are being denied sufficient process. Instead, Defendants suggest that Plaintiffs may be housed in
indefinite, solitary confinement without due process protections because they have no liberty
interest in being housed elsewhere, or alternatively, Plaintiffs were afforded due process at
6 In their objections, Defendants state “The R&R erred in finding that Defendants have a liberty
interest in avoiding their current housing and are being denied sufficient process.” Dkt. #62, p. 5 (empha-
sis added). The court acknowledges this was a typographical error.
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sentencing.7 Plaintiffs respond with legal authority recognizing a liberty interest in avoiding
indefinite solitary confinement, and argue that the magistrate judge properly considered both the
duration and the conditions of confinement in evaluating the merits of Plaintiffs’ claim.
1. Protected Liberty Interest
In determining whether a liberty interest exists, the proper inquiry focuses on whether the
challenged confinement imposes an atypical and significant hardship in relation to the ordinary
incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484 (1995). Many courts recognize
inmates’ due process right to avoid solitary confinement as clearly established. Williams v. Sec’y
Penn. Dep’t of Corr., 848 F.3d 549, 569-572 (3d Cir. 2017) (collecting cases) (“It is now clear
that the deprivations of protracted solitary confinement so exceed the typical deprivations of
imprisonment as to be the kind of atypical, significant deprivation . . . which [can] create a
liberty interest.”) (internal citations omitted).
The Fifth Circuit requires consideration of the severity and duration of solitary
confinement. See LaVergne v. Stutes, 82 F.4th 433 (5th Cir. 2023) (prisoner’s nearly five years
in solitary confinement were not sufficiently severe to violate his due process rights); compare
with Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (finding the following sufficiently severe:
a “supermax facility” where placement was indefinite, almost all contact was prohibited, and
placement disqualified the prisoner for parole consideration); Wilkerson, 774 F.3d at 855 (thirty-
nine-year confinement in solitary confinement was sufficient); and Bailey v. Fisher, 647 F.
7 Defendants also object to the magistrate judge’s failure to reference dicta from Parker v. Cook,
642 F.2d 865, n.7 (5th Cir. 1981), which they contend held that “death row inmates have no liberty inter-
est in avoiding their conditions of confinement when the state has a blanket policy of automatically and
indefinitely housing all death row inmates in those conditions.” Their reliance is unavailing because as
the Plaintiffs correctly note, Parker is distinguishable. First, it addressed a Florida statute requiring all
death row inmates be held in administrative segregation, in contrast to Texas law that lacks that require-
ment. Second, Parker was decided before Wilkerson, 774 F.3d 845, and Wilkinson v. Austin, 545 U.S.
209 (2005), which unequivocally confirmed that the relevant inquiry centers on the extreme nature of the
hardship that a prisoner experiences, not on the particular statutory language.
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App’x 472, 474-75 (5th Cir. 2016) (prisoner kept twenty-three to twenty-four hours per day in a
cell with solid steel door and minimum visitation was sufficient).
As the magistrate judge noted, the Supreme Court’s decisions in Sandin and Wilkinson
provide the governing framework for assessing whether conditions of confinement constitute an
“atypical and significant” hardship. Consistent with this precedent, the magistrate judge
compared both the duration and alleged conditions of solitary confinement to Fifth Circuit cases
where the court identified a liberty interest. Dkt. #58, p. 34-35 (citing Hope, 861 F. App’x at
571; Bailey, 647 F. App’x at 472; Wilkerson, 774 F.3d 845; Hernandez, 522 F.3d at 556).8
Applying this standard, the magistrate judge considered the severity and duration of confinement
to determine that Plaintiffs allege a liberty interest (conditions of which result in constant social
and sensory deprivation, which in this case ranges from 5 to 26 years) without meaningful
review. Dkt. #58, p. 35.
2. Defendants’ Procedures were Constitutionally Inadequate
The magistrate judge concluded that the Defendants’ alleged policy and procedures are
constitutionally inadequate under their Fourteenth Amendment right to due process because the
Plaintiffs lack any meaningful mechanism to contest their indefinite, solitary confinement at the
Polunsky Unit. Defendants largely disregard this conclusion and instead contend that Plaintiffs
received due process at sentencing. This argument fails, however, because a death sentence in
Texas does not mandate indefinite, solitary confinement. Rather, official TDCJ policy requires
that all male capital offenders be housed on Polunsy Death Row and governed by the
Defendants’ “Death Row Plan.” As the magistrate judge recognized, the “Death Row Plan”
8 Although the Supreme Court has not directly ruled on the constitutionality of indefinite solitary
confinement, the dangers posed by such conditions are well documented, and the cases relied on by the
magistrate judge support his conclusion. See e.g., Ruiz v. Texas, 137 S. Ct. 1246, 1424 (2017) (Breyer, J.
dissenting); Davis v. Ayala, 576 U.S. 289 (2015) (Kennedy, J., concurring) and Glossip v. Gross, 576
U.S. 863, 926 (2015) (Breyer, J., dissenting).
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governs recreation time, work status, and other conditions on death row and requires that all
death row prisoners be classified based on their behavior and need for supervision. Plaintiffs
allege, however, that in practice the Defendants prohibit any meaningful differentiation or review
and instead impose indefinite solitary confinement for all death row inmates.9 The process
afforded at sentencing does not address the later, indefinite imposition of solitary confinement or
provide a constitutionally sufficient substitute for ongoing procedural protections.
Therefore, the magistrate judge correctly determined that Plaintiffs pled a Fourteenth
Amendment due process claim. Defendants’ objections are therefore OVERRULED, and the
court ADOPTS the magistrate judge’s recommendation as to Plaintiffs’ Fourteenth Amendment
claims.
C. Defendants object to the magistrate judge’s finding that they are not entitled to
qualified immunity on individual claims related to conditions in solitary
confinement or medical care.10
Defendants’ Motion to Dismiss seeks the application of qualified immunity on the
individual Eighth Amendment claims because (1) Plaintiffs have not alleged a constitutional
violation, and (2) even if the court disagrees, Defendants are still entitled to qualified immunity
because their actions were (and are) objectively reasonable in light of clearly established law.
Dkt. #29, p. 48. The magistrate judge applied this two-step analysis and found that “Plaintiffs’
allegations regarding conditions in solitary confinement [and lack of medical care] sufficiently
establish that they were deprived of certain minimal civilized measures of life’s necessities,” and
that “this right was clearly established at the time Plaintiffs were subjected to these conditions.
9 Additionally, the male inmates sentenced prior to their transfer to the Polunsky Unit were ini-
tially housed in non-solitary conditions. Defendants later reversed this policy without affording Plaintiffs
any opportunity to contest their placement or continued confinement.
10 Neither party objected to the magistrate judge’s finding that Defendants are entitled to quali-
fied immunity with respect to Plaintiffs’ Due Process claims.
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As a result, Defendants have not established a right to qualified immunity” on “claims related to:
conditions in solitary confinement or medical care.” Dkt. #58, p. 40, 42.
Defendants object, claiming that “[a]t the very least, the absence of binding case law
holding that any of Plaintiffs’ alleged conditions are unconstitutional—coupled with the case law
holding that solitary confinement ‘is not per se cruel and unusual’—means that Defendants are
entitled to qualified immunity, and that the magistrate judge failed to undertake the required
defendant-by-defendant analysis for determining qualified immunity.” Dkt. #62, p. 4 (citing
Dkt. #29 at 38-39). Defendants’ argument that their alleged actions do not rise to the level of a
constitutional violation fails for the reasons discussed in Section III(A), supra.
Defendants’ objection that the magistrate judge failed to engage in a defendant-by-
defendant analysis warrants closer examination. Defendants are correct that Plaintiffs must
allege specific facts that describe the Defendants’ “personal involvement” in violating their
clearly established federal right. Sanders v. Gibson, No. 23-11196, 2025 WL 1029440, at *2
(5th Cir. 2025); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983); Covarrubias v. Brannan,
No. 6:23-CV-404-JDK-KNM, 2025 WL 2945596, at *1 (E.D. Tex. Oct. 17, 2025) (“Plaintiff
must plead specific facts that both allow the court to draw the reasonable inference that each
Defendant is liable for the harm alleged, and that defeat a qualified immunity defense with equal
specificity.”). In the “Qualified Immunity Defense” section of his report (Dkt. #58, p. 40), the
magistrate judge seemingly skips his obligation to address Defendants’ personal involvement or
engage in a defendant-by-defendant analysis. However, the reason the magistrate judge glances
over this consideration is because Defendants failed to raise it in their Motion to Dismiss. See
Dkt. #29, p. 48 (arguing that qualified immunity attaches to Plaintiffs’ confinement-of-conditions
claim because of their failure to adequately plead a constitutional violation but not addressing
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inadequate pleading as to personal involvement). Defendants did not seek dismissal on the basis
that Plaintiffs allege insufficient facts to demonstrate “personal involvement,” and they cannot
do so now. Brown v. City of Cent., No. 23-30146, 2024 WL 546340, at *7 (5th Cir. 2024)
(“[I]ssues raised for the first time in an objection to a report and recommendation,” but not raised
in a response to a motion which is the subject of the report and recommendation, are “not
properly before the district court.”).
Defendants object that the magistrate judge failed to conduct a defendant-by-defendant
analysis in determining whether qualified immunity attaches. This argument relies on an issue
not raised in their Motion to Dismiss, therefore, the court declines to consider it and
OVERRULES the objection on that basis.
Nevertheless, Defendants’ objection fails on the merits. Defendants rely on the Fifth
Circuit’s unpublished holding in Lopez v. Ramirez, No. 23-40461, 2024 WL 1168048, at *2 (5th
Cir. 2024), which remanded a district court’s denial of dismissal for—what they allege—is a
“failure to undertake the required defendant-by-defendant analysis.” Dkt. # 62, p. 4.
Defendants overlook footnote seven, which cites Davis v. Bayless, 70 F.3d 367, 376 (5th Cir.
1995), explaining that while Rule 12 does not require findings of fact or conclusions of law, a
district court must nevertheless articulate its reasoning with sufficient clarity to permit appellate
review. Id. The court in Lopez remanded due to the district court’s failure to articulate any
analysis supporting its denial of the motion to dismiss, which prevented effective appellate
review. Here, the magistrate judge examined the pleadings and determined that Plaintiffs alleged
facts sufficient to demonstrate (1) that the Defendants violated a constitutional right, and (2) that
the violated right was “clearly established” at the time of Defendants’ alleged actions. Thus, his
recommendation to deny Defendants qualified immunity at this stage is correct. See Nevarez v.
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Coleman, No. CV 21-1855, 2022 WL 2528237, at *5 (E.D. La. 2022) (“At the motion-to-dismiss
stage, the Court looks to ‘defendant’s conduct as alleged in the complaint’ to determine whether
a defendant is entitled to qualified immunity.” (quoting Behrens v. Pelletier, 516 U.S. 299, 309
(1996)). Defendants may reassert qualified immunity on a defendant-by-defendant basis at
summary judgment.
IV. ORDER
After a de novo review, the court determines that the magistrate judge’s report is correct
and Defendants’ objections are without merit. Accordingly, the court
OVERRULES the Defendants’ objections (Dkt. #62);
ADOPTS the magistrate judges’ Report and Recommendation (Dkt. #58); and
GRANTS Defendants’ Motion to Dismiss (Dkt. #29), in part, in accordance with the
magistrate judge’s recommendation.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
SIGNED at Beaumont, Texas, this 24th day of February, 2026.
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