Warrick v. Gonzales et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
GREGORY WARRICK,
TDCJ-CID No. 2395331,
§
§
§
Plaintiff, §
§
v. § 2:24-CV-256-Z-BR
§
ADAM R. GONZALES, et al., §
§
Defendants. §
FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DENY MOTION FOR
PRELIMINARY INJUNCTION AND GRANT MOTION TO DISMISS COMPLAINT
Before the Court is a Motion for Preliminary Injunction (ECF 21) filed by Plaintiff Gregory
Warrick (“Warrick”) and Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
(ECF 22). For the reasons stated below, the Magistrate Judge recommends that Warrick’s Motion
be DENIED and that Defendants’ Motion be GRANTED.
I. FACTUAL BACKGROUND1
Warrick, a pro se prisoner at the Clements Unit of the Texas Department of Criminal
Justice, alleges in his Amended Complaint that Defendants Daniel Pacheco (“Pacheco”) and Carl
Schiwart (“Schiwart”) failed to ensure that he received medication needed to control his mental
health issues. (ECF 21 at 4). Without the medication, he hears voices, sees “little people” who tell
him to harm himself, and has suicidal thoughts. (Id.). He claims that he made more than eight
requests for medical care, but staff shortages resulted in the Clements Unit not having guards
1These background facts are taken from Plaintiff’s Amended Complaint (ECF 21) and are assumed to be
true for the purpose of evaluating the merits of the motions at issue.
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available to escort him to these visits. He admits that he was seen by mental health clinicians, but
states that the clinicians merely set up appointments with medical care providers and are unable to
prescribe the medication he needs. (Id. at 5).
Warrick filed a Step One grievance about his lack of mental health medical care, and
Pacheco responded by informing him of the staff shortages that resulted in Warrick not being
escorted to his medical appointments. (Id. at 6). Warrick then filed a Step Two grievance, to which
Schiwart responded, stating that Warrick was seen by mental health services and no further action
was warranted. (Id.). Warrick claims that both Pacheco and Schiwart are supervisors who are
responsible for the Warrick’s medical care and were deliberately indifferent to such needs. (Id.).
Warrick filed suit, seeking a preliminary injunction for the Court to order Defendants to provide
him access to medical care. (Id. at 4).
Pacheco and Schiwart filed a response to Warrick’s request for injunctive relief and a
Motion to Dismiss pursuant to Rule 12(b)(1) and (6). (ECF 22).2 Warrick responded, disputing
Defendants’ contentions. (ECF 24).
II. LEGAL STANDARDS
A. Rule 12(b)(1).
A court may dismiss a complaint for lack of subject-matter jurisdiction. Fed. R. Civ. P.
12(b)(1). A case is properly dismissed under Rule 12(b)(1) when the court lacks “the statutory or
constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison,
Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). The Court should grant a Rule 12(b)(1) motion to
2While Defendants titled their response as a response to Warrick’s request for a Temporary Restraining
Order (“TRO”), Warrick had amended his Complaint and dropped his request for a TRO, and now only
seeks a preliminary injunction. (ECF 21). Nevertheless, the Court will treat Defendants’ response as
addressing Warrick’s request for a preliminary injunction.
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dismiss only if it appears certain that the plaintiff cannot prove any set of facts that would entitle
him to recovery. Morris v. Thompson, 852 F.3d 416, 419 (5th Cir. 2017). The party invoking the
Court’s jurisdiction bears the burden of demonstrating that jurisdiction exists. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
B. Rule 12(b)(6).
To survive a motion to dismiss pursuant to Rule 12(b)(6), 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) (internal quotation and citation omitted). “Factual
allegations must be enough to raise a right to relief above the speculative level, … on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and footnote omitted). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements” do not
establish facial plausibility. Iqbal, 556 U.S. at 678. A claim has facial plausibility “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 557). In evaluating
the sufficiency of a complaint, courts accept well-pleaded factual allegations as true, but do not
credit conclusory allegations or assertions that merely restate the legal elements of a claim. Chhim
v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016).
The Court also is mindful it “must construe the pleadings of pro se litigants liberally … to
prevent the loss of rights due to inartful expression.” Perez v. Dall. Cnty. Jail, No. 3:20-cv-01761,
2022 WL 1215781, at *2 (N.D. Tex. Mar. 31, 2022) (internal citations omitted); see also Andrade
v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006). “But ‘liberal construction does not require that the
Court ... create causes of action where there are none.’” Rolan v. LaSalle Sw. Corr., No. 3:20-cv-
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2842, 2021 WL 5568168, at *3 (N.D. Tex. Nov. 1, 2021) (quoting Smith v. CVS Caremark Corp.,
No. 3:12-cv-2465, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013)). While courts hold pro se
plaintiffs to a more lenient standard than attorneys when analyzing complaints, such plaintiffs must
nevertheless plead factual allegations that raise the right to relief above a speculative level. Id.
(citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).
II. LEGAL ANALYSIS
A. Official Capacity Claims.
Warrick sues Defendants in their individual and official capacities. (ECF 21; ECF 24 at 3).
Claims against Defendants in their official capacity are without merit in that they are simply
another way of suing the TDCJ, and therefore the State of Texas. See Kentucky v. Graham, 473
U.S. 159, 165-66 (1985); see also Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits against state
officials in their official capacity therefore should be treated as suits against the State.”). It is well
established that suits for monetary damages against state officials in their official capacities cannot
succeed under Section 1983. See Almond v. Tarver, 468 F. Supp. 2d 886, 892-95 (E.D. Tex. 2006)
(collecting authorities and holding that claim against state official in his official capacity was
barred by sovereign and Eleventh Amendment immunities). In addition, state officials acting in
their official capacities are not “persons” under § 1983. See Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70-71 (1989). Therefore, Defendants’ Motion to Dismiss pursuant to Rule 12(b)(1)
should be granted as to Warrick’s claim for monetary damages against Defendants in their official
capacities.
B. Eighth Amendment Claims.
Warrick alleges that Defendants failed to provide him medication to treat his mental illness.
(ECF 21 at 4). The Constitution requires that prison officials provide adequate medical care for
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inmates. Rogers v. Boatright, 709 F.3d 403, 409 (5th Cir. 2013). An inmate seeking to establish a
constitutional violation regarding medical care must allege facts showing that prison officials were
deliberately indifferent to his serious medical needs. Morris v. Livingston, 739 F.3d 740, 747 (5th
Cir. 2014) (explaining that, because “only the ‘unnecessary and wanton infliction of pain’
implicates the Eighth Amendment, a prisoner advancing such a claim must, at a minimum, allege
‘deliberate indifference’ to his ‘serious’ medical needs’”) (quoting Wilson v. Seiter, 501 U.S. 294,
297 (1991)). Deliberate indifference “is an extremely high standard to meet.” Brewster v. Dretke,
587 F.3d 764, 770 (5th Cir. 2009) (internal quotation omitted) and requires satisfaction of both an
objective and a subjective component. Rogers, 709 F.3d at 410. An inmate must first prove
objective exposure to a substantial risk of serious bodily harm. Gobert v. Caldwell, 463 F.3d 339,
345 (5th Cir. 2006). As to the subjective component, an official acts with deliberate indifference
only when he (1) knows the inmate faces “a substantial risk of serious harm” and (2) “disregards
that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847
(1994); Gobert, 463 F.3d at 346; see also Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999)
(per curiam) (stating that prison official is not liable for denial of medical treatment unless he
knows of and disregards an excessive risk to inmate health or safety).
An official’s “failure to alleviate a significant risk that the official should have perceived,
but did not, is insufficient to show deliberate indifference.” Domino v. Tex. Dep’t of Crim. Just.,
239 F.3d 752, 756 (5th Cir. 2001) (alterations and internal quotation omitted) (quoting Farmer,
511 U.S. at 838). “[D]eliberate indifference cannot be inferred merely from a negligent or even a
grossly negligent response to a substantial risk of serious harm.” Thompson v. Upshur Cnty., 245
F.3d 447, 459 (5th Cir. 2001). Instead, an official “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
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inference.” Brewster, 587 F.3d at 770 (quoting Farmer, 511 U.S. at 837); see also Lawson v.
Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002) (holding that deliberate indifference is a
“subjective inquiry,” and inmate must show that the prison official was actually aware of risk of
harm and consciously ignored it).
Allegations of malpractice, negligence, or unsuccessful treatment fail to establish
deliberate indifference. Gobert, 463 F.3d at 346. Similarly, an inmate’s disagreement with the
medical treatment provided does not give rise to a constitutional claim. Norton v. Dimazana, 122
F.3d 286, 292 (5th Cir. 1997). Further, a delay in delivering medical care creates constitutional
liability only where the alleged deliberate indifference results in substantial harm. Mendoza v.
Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993). In sum, an inmate must demonstrate that prison staff
“refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in
any similar conduct that would clearly evince a wanton disregard for any serious medical needs”
to state a viable Eighth Amendment claim for deliberate indifference to serious medical needs.
Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
1. Supervisory Liability Claims.
Warrick alleges that Pacheco and Schiwart violated his Eighth Amendment rights by
refusing to ensure that he received the medical care he needs. (ECF 21 at 4). Pacheco and Schiwart
allege in their motion that they are supervisory officials who have no personal involvement in the
alleged deprivation of Warrick’s constitutional rights. It is well established that supervisory
officials are not liable for the acts of their subordinates unless they: (1) affirmatively participated
in an act that caused a constitutional deprivation, or (2) implemented an unconstitutional policy
that resulted in injury to the plaintiff. Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir.
1992) (citing Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987)). A prisoner must sufficiently
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allege facts showing either personal involvement or implementation of an unconstitutional policy
to make a supervisor responsible under Section 1983, as prison supervisors “are not liable for the
actions of subordinates on any theory of vicarious liability.” Thompkins, 828 F.2d at 303.
Supervisory liability exists without overt personal participation in an offensive act only if the
supervisory official implements a policy “so deficient that the policy” itself is a repudiation of
constitutional rights and is “the moving force of the constitutional violation.” Id. at 304 (quotations
omitted).
In order to establish a claim for a deficient policy that caused the violation of a
constitutional right under Section 1983, a plaintiff must identify a policy or custom of the
governmental entity (or of a final policymaker of the governmental entity) that caused a
deprivation of his constitutional rights. Monell v. Dep’t of Soc. Serv., 435 U.S. 658, 694-95 (1978).
Warrick has not alleged facts that satisfy this standard. Warrick has not complained that any policy
created by these supervisory officials was the cause of the alleged violation of his constitutional
rights. To the contrary, Warrick appears to claim that the policies in place were not followed. (ECF
24 at 4-5). Warrick has failed to establish that these Defendants were liable in their supervisory
roles for a constitutionally deficient policy that created a violation of his constitutional rights.
2. Claims Based on Policy Violations.
Warrick alleges that Defendants failed to follow TDCJ policies regarding inmate access to
health services. (Id.). However, an assertion that officials failed to follow prison rules or policies
does not state a constitutional claim. McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012),
citing Jackson v. Cain, 864 F.2d 1235, 1251–52 (5th Cir. 1989); see also Myers v. Klevenhagen,
97 F.3d 91, 94 (5th Cir. 1996) (per curiam). TDCJ’s policies, internal rules and regulations,
standing alone, do not create federally protected rights. See Sandin v. Conner, 515 U.S. 472, 487
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(1995); Jackson, 864 F.2d at 1251 (“A state’s failure to follow its own procedural regulations does
not establish a violation of due process, because constitutional minima may nevertheless have been
met.” (internal quotation omitted)). The allegation that Defendants failed to follow prison rules
does not state a constitutional law violation.
Further, it appears that Warrick bases his claims on Defendants’ respective responses to
his grievance regarding lack of medical care. A prisoner has a liberty interest only in freedoms
from restraint imposing “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484. Warrick has no constitutional right to a grievance
procedure and has no due process liberty interest in having grievances resolved to his satisfaction.
See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005); Smith v. Horton, 670 F. App'x 872,
873 (5th Cir. 2016) (finding prisoner had no liberty interest in adequacy or result of prison
administrative grievance procedures). Warrick’s claims premised on Defendants’ alleged failure
to properly investigate and timely respond to grievances are indisputably meritless and
Defendants’ Motion should be granted. See Geiger, 404 F.3d at 373-74.
3. Claims Based on Defendants’ Personal Involvement.
To the extent that Warrick bases his claims on Defendants’ purported personal involvement
in denying him medical care, such allegations fail to state a claim. As noted above, Warrick must
show that Defendants were deliberately indifferent to Warrick’s need for medical care. Warrick,
however, admits that he was not escorted to his medical appointment due to staffing shortages, not
due to Defendants’ intentional decision to deny him medical care despite their knowledge that
Warrick faced a substantial risk of serious harm. See Lawson, 286 F.3d at 262 (prison official must
be actually aware of risk of harm and consciously ignore it). Warrick does not allege facts showing
that either Defendant personally decided to not escort him to his medical appointments or ordered
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other guards to not escort him. In fact, he alleges no facts showing any contemporaneous
knowledge whatsoever by either Defendant that Warrick was missing his appointments. According
to the Amended Complaint, it appears that both Defendants first learned that Warrick was missing
appointments via his after-the-fact grievances. (ECF 21 at 5-6). Lastly, Warrick fails to allege facts
showing that the delay in providing medical care actually caused him harm, which is fatal to his
claim of delayed medical care. See Mendoza, 989 F.2d at 193. Because Warrick fails to state a
claim against Defendants for an Eighth Amendment violation, Defendants’ Motion should be
granted.
D. Injunctive Relief.
Warrick does not show that he is entitled to a preliminary injunction. An injunction is an
extraordinary remedy and “should not issue except upon a clear showing of possible irreparable
injury.” Lewis v. S.S. Baune, 534 F.2d 1115, 1121 (5th Cir. 1976). Issuance of a preliminary
injunction “is within the discretion of the court, but it is an extraordinary remedy that should only
be granted if the movant has clearly carried its burden.” John Crane Prod. Sols., Inc. v. R2R & D,
LLC, 861 F. Supp. 2d 792, 794 (N.D. Tex. 2012). The decision to grant preliminary injunctive
relief “is to be treated as the exception rather than the rule.” Miss. Power & Light Co. v. United
Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
To prevail, the applicant must demonstrate (1) a substantial likelihood of success on the
merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is
denied; (3) that the threatened injury outweighs any damage that the injunction might cause the
Defendants; and (4) that the injunction will not disserve the public interest. See Affiliated Prof’l
Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir. 1999) (citations omitted); see
also Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). Warrick “must satisfy a cumulative
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burden of proving each of the four elements enumerated before a temporary restraining order or
preliminary injunction can be granted.” Id. As shown above, Warrick has not shown a substantial
likelihood that he will prevail on the merits of his claims against Defendants. Accordingly, his
request for injunctive relief should be denied.
E. Leave to Amend.
Ordinarily, a pro se plaintiff should be granted leave to amend his complaint prior to
dismissal. Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). The district court is not
required to allow such an opportunity, though, if the prisoner’s claims are clearly frivolous, Eason
v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994), or if the prisoner has pleaded his best case in the current
complaint. Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020). Warrick has amended
his Complaint after being apprised of its deficiencies in Defendants’ initial Motion to Dismiss, yet
failed to correct them sufficiently to state a claim. Under these circumstances, the Court concludes
that granting leave to amend would be futile and cause needless delay.3
RECOMMENDATION
For the reasons stated above, the Magistrate Judge concludes that Warrick’s Application
for Preliminary Injunction should be DENIED, and Defendants’ Motion to Dismiss pursuant to
Rules 12(b)(1) and (6) should be GRANTED.
INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a copy of this Findings, Conclusions
and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
3That notwithstanding, the 14-day objection period will permit Warrick the opportunity to proffer factual
and/or legal bases, if any, to cure the deficiencies in his claims outlined herein.
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ENTERED December 11, 2025.
* NOTICE OF RIGHT TO OBJECT *
Any party may object to these proposed findings, conclusions and recommendation. In the
event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is
fourteen (14) days from the date of filing as indicated by the “entered” date directly above the
signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by
electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the
fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28
U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).
Any such objections shall be made in a written pleading entitled “Objections to the
Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections
with the United States District Clerk and serve a copy of such objections on all other parties. A
party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds
of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal
conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district
court. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery
Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275,
276–77 (5th Cir. 1988).
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