Gomez v. Masters et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ARMANDO GOMEZ,
Plaintiff,
VS.
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:25-CV-00240
KELVIN D. MASTERS, et al.
MEMORANDUM AND RECOMMENDATION
TO DISMISS CERTAIN CLAIMS AND TO RETAIN CASE
Plaintiff Armando Gomez is a Texas inmate appearing pro se and in forma pauperis.
He filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s case is
subject to screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. §
1997e(c); 28 U.S.C. §§1915(e)(2), 1915A.
For purposes of screening, Plaintiff has stated Eighth Amendment claims of
excessive force and failure to protect against: (1) Warden Kelvin D. Masters; (2) Lt.
Adan A. Cavasos; (3) Sgt. Linda M. Perez; and (4) Officer Eisa M. Chapa in their
individual capacities. Accordingly, it is respectfully recommended that these claims be
RETAINED. The undersigned will order service on these defendants separately.
For the reasons set forth below, the undersigned further recommends that: (1)
Plaintiff’s claims for money damages against Defendants in their official capacities be
DISMISSED without prejudice as barred by the Eleventh Amendment; and (2) Plaintiff’s
United States District Court
Southern District of Texas
ENTERED
November 13, 2025
Nathan Ochsner, Clerk
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remaining claims be DISMISSED without prejudice for failure to state a claim pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
I. JURISDICTION
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case
has been referred to the undersigned magistrate judge for case management and making
recommendations on dispositive motions pursuant to 28 U.S.C. § 636.
II. PROCEDURAL BACKGROUND
Plaintiff is a Texas inmate currently assigned to the TDCJ Gist Unit1 in Beaumont,
Texas, however, the facts giving rise to this case arose out of his assignment to the
McConnell Unit in Beeville, Texas in April 2024. Plaintiff filed this action on September
5, 2025, utilizing a Prisoner Civil Rights Complaint form. (D.E. 1). Plaintiff named the
following defendants: (1) Warden Kelvin D. Masters; (2) Lieutenant Adan A. Cavazos; (3)
Sgt. Linda M. Perez; (4) Officer Eisa M. Chapa; (5) Disciplinary Captain Mata; and (6)
TDCJ Director Lumpkin.2 Plaintiff attached to his complaint form a typed document
entitled “Plaintiff’s Original Petition” (D.E. 1-1), an “Affidavit of Grievances” (D.E. 1-2),
and Affidavits of two inmates who witnessed the incident in question (D.E. 1-3). On
September 19, 2025, Plaintiff was allowed to amend his complaint to add the Defendants’
full names and addresses. (D.E. 8, D.E. 9 and D.E. 11). A Spears3 hearing was originally
1 Plaintiff has been approved to be released on parole. Therefore, his address will certainly change. The undersigned
has admonished Plaintiff previously, and does so again, that he must always keep the Court aware of his current
address by immediately filing a notice of a change of address which includes his name, the case number of this action,
and his new address. Failure to do so may result in the case being dismissed for want of prosecution.
2 Former TDCJ Director Lumpkin has been replaced by Eric Guerrero.
3 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996) (stating
that testimony given at a Spears hearing is incorporated into the pleadings).
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set on September 15, 2025, however, it was reset to October 31, 2025, when Plaintiff
requested to testify through an interpreter. Plaintiff appeared remotely on October 31, 2025,
for a Spears hearing at which he was given an opportunity to further explain his claims.
Plaintiff testified with the assistance of an interpreter. For purposes of evaluating Plaintiff’s
allegations, the undersigned has considered Plaintiff’s Original Complaint, the
attachments, and Plaintiff’s testimony at the Spears hearing.
III. PLAINTIFF=S ALLEGATIONS AND CLAIMS
Plaintiff’s allegations in this action arise in connection with his housing assignment
at the McConnell Unit in April 2024. Plaintiff alleges on April 2, 2024, he was housed in
the McConnell Unit’s 4 Building, D-pod, 1-section. That day he had an appointment with
the medical department and returned to Building 4 at approximately 1:30 p.m. Prior to
arriving at his housing area, Plaintiff observed officers responding to his housing area in
connection with a use of force incident. Plaintiff has asthma and other health problems and
was concerned the officers would deploy gas or a chemical agent in Plaintiff’s housing
area. Therefore, Plaintiff requested Sgt. Perez to not put Plaintiff back in his housing area.
Sgt. Perez denied Plaintiff’s request and directed Plaintiff to return to his housing area.
When Plaintiff arrived at his housing area, he learned the disturbance concerned an
inmate who was smoking a cigarette, which the undersigned construes to be contraband.
According to Plaintiff’s testimony, there was no riot or other misconduct by the inmates
and there was no disturbance or unruly behavior on the part of the inmates. Plaintiff
testified and stated in his complaint that the officers elected to punish all the inmates in
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Plaintiff’s housing area for the single inmate who was smoking, even though Plaintiff was
not present during the inmate’s use of contraband. Plaintiff alleges Defendants Masters,
Cavazos, Perez, and Chapa each individually deployed gas or a chemical agent in
Plaintiff’s housing area. Plaintiff further testified Lt. Cavazos shot Plaintiff three times with
rubber bullets. Plaintiff testified that at the time he was shot he was sitting quietly, was
complying with officer orders and was doing not doing anything to justify force being used
against him. Plaintiff testified the circumstances of being struck by three separate bullets
at close range by Lt. Cavazos indicate the use of force against Plaintiff was intentional and
not an accident. Plaintiff further testified that the circumstances surrounding the use of
force did not justify the manner or means of the use of force, and thus the use of force was
unnecessary and was excessive. Plaintiff further testified he experienced problems
breathing over an extended period and suffered extreme pain for an extended period of time
in the area where he was shot at close range multiple times with rubber bullets.
Plaintiff received a disciplinary case for participating in a riot. Captain Mata served
as the disciplinary hearing officer and found the allegation true. However, the disciplinary
case against Plaintiff was later reversed and dismissed based on insufficient evidence
during the administrative appellate process.
Plaintiff raises four claims in this action. First, Plaintiff alleges Warden Masters, Lt.
Cavazos, Officer Chapa, and Sgt. Perez violated his Eighth Amendment rights by using
excessive force against Plaintiff. According to Plaintiff, these defendants used excessive
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force by using large gas cans in Plaintiff’s housing area and near Plaintiff’s physical
location and by shooting him with rubber bullets.
Plaintiff next claims Warden Masters, Lt. Cavazos, Officer Chapa, and Sgt. Perez
violated his Eighth Amendment rights when they failed to protect him or otherwise
intervene for him when the other defendants used excessive force against Plaintiff. As part
of this claim, Plaintiff alleges these defendants were aware of Plaintiff’s asthma and
breathing issues before sending him into a riot where gas would be used.
Third, Plaintiff claims Captain Mata, Warden Masters, Lt. Cavazos, Officer Chapa,
and Sgt. Perez violated his procedural due process rights by forcing him into a riot,
allowing a false disciplinary report to be written and convening a disciplinary hearing
where false testimony was introduced along with the suppression of Plaintiff’s evidence.
Lastly, Plaintiff claims the TDCJ Director violated his Eighth Amendment rights
when he failed to train the McConnell Unit defendants and enacted an unconstitutional
training program and policy that requires all inmates to be punished by a disciplinary report
for the misconduct of one inmate.
IV. DISCUSSION AND ANALYSIS
A. Legal Standard
When a prisoner seeks to proceed in forma pauperis the Court shall evaluate the
complaint and dismiss it without service of process if the Court finds the complaint
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. A
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claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S.
319 (1989). A claim has no arguable basis in law if it is based on an indisputably meritless
legal theory, “such as if the complaint alleges the violation of a legal interest which clearly
does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). A claim has no
arguable basis in fact if “after providing the plaintiff the opportunity to present additional
facts, when necessary, the facts alleged are clearly baseless.” Talib v. Gilley, 138 F.3d 211,
213 (5th Cir. 1998).
“In analyzing the complaint, [the Court] will accept all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999). “The issue is not whether the plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claim. Thus, the Court should not
dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts
or any possible theory that he could prove consistent with the allegations in the complaint.”
Id. (citations omitted). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plaintiff must allege sufficient facts in support of its legal conclusions that give rise
to a reasonable inference that Defendant is liable. Id.; Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007). The factual allegations must raise Plaintiff’s claim for relief above
the level of mere speculation. Twombly, 550 U.S. at 555. As long as the complaint, taken
as a whole, gives rise to a plausible inference of actionable conduct, Plaintiff’s claim should
not be dismissed. Id.
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Plaintiff’s allegations arise under 42 U.S.C. § 1983. This section provides a vehicle
for redressing the violation of federal law by those acting under color of state law. Nelson
v. Campbell, 541 U.S. 637, 643 (2004). To prevail on a § 1983 claim, the plaintiff must
prove that a person acting under the color of state law deprived him of a right secured by
the Constitution or laws of the United States. 42 U.S.C. § 1983; West v. Atkins, 487 U.S.
42, 48 (1988). A defendant acts under color of state law if he misuses or abuses official
power and if there is a nexus between the victim, the improper conduct, and the defendant’s
performance of official duties. Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).
B. Eleventh Amendment Immunity and Official Capacity
A suit against a state officer in his or her official capacity is effectively a suit against
that state official’s office. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
The Eleventh Amendment, however, bars claims for money damages against a state or state
agency. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Aguilar v. Texas
Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). As such, an action for
monetary damages against a state official in his or her official capacity is one against the
state itself and is barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). The Fifth Circuit has extended the Eleventh Amendment immunity
specifically to TDCJ officers and officials acting in their official capacities. See Oliver v.
Scott, 276 F.3d 736, 742 (5th Cir. 2002) (Eleventh Amendment bars prisoner’s suit for
money damages against prison officials in their official capacities).
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To the extent Plaintiff sues any of the Defendants in their official capacities for
money damages, those claims are barred by the Eleventh Amendment. Thus, it is
respectfully recommended that Plaintiff’s claims for money damages against Defendants
in their official capacities be dismissed with prejudice.
C. Excessive Force
Inmates have a constitutional right to be free from the use of excessive force. See
Anthony v. Martinez, 185 F. App’x 360, 363 (5th Cir. 2006). To state an excessive force
claim, a plaintiff must show that the force was not applied in a good-faith effort to maintain
or restore discipline, but was applied maliciously and sadistically to cause harm, and that
the injury he suffered was more than de minimis but not necessarily significant. See Hudson
v. McMillian, 503 U.S. 1, 6-7, 10 (1992). As set forth by the Supreme Court in Hudson,
the five factors to be considered are: (1) the extent of the injury suffered; (2) the need for
application of force; (3) the relationship between that need and the amount of force used;
(4) the threat reasonably perceived by the responsible officials; and (5) any effort made to
temper the severity of a forceful response. Gomez v. Chandler, 163 F.3d 921, 923-24 (5th
Cir. 1999) (citing Hudson, 962 F.3d at 523).
A prison official’s “excessive physical force against a prisoner may constitute cruel
and unusual punishment when the inmate does not suffer serious injury.” Hudson, 503 U.S.
at 4. In Wilkins v. Gaddy, 559 U.S. 34 (2010), the Supreme Court ruled that a district court
“erred in dismissing Wilkins’ excessive force complaint based on the supposedly de
minimis nature of his injuries.” Id. at 40. The Supreme Court explained that “the core
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judicial inquiry [is] not whether a certain quantum of injury was sustained, but rather
‘whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.’” Id. at 37 (citations omitted).
“[A]lthough a de minimis injury is not cognizable, the extent of injury necessary to
satisfy the injury requirement is ‘directly related to the amount of force that is
constitutionally permissible under the circumstances.’” Brown v. Lynch, 524 F. App’x 69,
79 (5th Cir. 2013) (quoting Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir. 1996)). See also
Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004)) (noting that the minimum
qualifying injury “changes with the facts of each case”); Williams v. Bramer, 180 F.3d 699,
704 (5th Cir. 1999) (“What constitutes an injury in an excessive force claim is ... subjective
-- it is defined entirely by the context in which the injury arises.”). Courts, therefore, may
look to the seriousness of the injury to determine “whether the use of force could plausibly
have been thought necessary, or instead evinced such a wantonness with respect to the
unjustified infliction of harm as is tantamount to a knowing willingness that it occur.”
Whitley v. Albers, 475 U.S. 312, 321 (1986).
Applying the Hudson factors in the instant case, Plaintiff has stated a claim for
excessive force against Warden Masters, Lt. Cavazos, Officer Chapa, and Sgt. Perez. The
only factor weighing against Plaintiff is the apparent nonpermanent nature of the injuries.
Plaintiff did not suffer life threatening injuries, but he alleges he suffered severe bruising,
contusions and respiratory problems which persisted for weeks. Regarding the reason for
the use of force, as alleged by Plaintiff, there was no justifiable reason to deploy any force
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against him. Another inmate smoking a cigarette at a time and place when Plaintiff was not
present and was unaware of the inmate’s use of contraband does not appear to be the type
of circumstances warranting Plaintiff being exposed to a chemical agent or shot with rubber
bullets. Regarding the relationship between the need to use force and the amount of force
used, there was no relationship. If Plaintiff allegations are true, the need to use force did
not exist and therefore, no amount of force was justified. Regarding the perceived threat,
there was none. Plaintiff alleges the use of chemical agents and rubber bullets was in
response to a single inmate smoking a cigarette. Regarding the final factor, efforts to
temper the use of force, Plaintiff alleges there were no such efforts. Thus, the undersigned
recommends Plaintiff has stated a claim for excessive used against Warden Masters, Lt.
Cavazos, Officer Chapa, and Sgt. Perez.
D. Failure to Protect
A prison official’s failure to intervene in another’s use of excessive force may
violate the Eighth Amendment. See Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). A
prison security official, therefore, “may be liable under § 1983 under a theory of
bystander liability where the officer (1) knows that a fellow officer is violating an
individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and
(3) chooses not to act.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (citation and
internal quotation marks omitted).
As set forth above, Plaintiff has stated Plausible failure to protect claims against
Warden Masters, Lt. Cavazos, Officer Chapa, and Sgt. Perez. It is uncertain whether
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separate claims against these officers for failure to protect is necessary. However, the facts
presented in the instant case raise a plausible claim that the officers both used excessive
force and failed to protect Plaintiff from the other officers’ excessive use of force. The facts
may be such that the deployment of chemical agents was not excessive under the
circumstances, but shooting Plaintiff with rubber bullets was excessive as alleged,
warranting intervention by the other officers. The facts could also develop that the initial
use of chemical agents was not excessive, but at some point, it became excessive,
warranting intervention by the other officers. The facts of this case may develop to be
similar to a situation where an officer justifiably uses force to apprehend a suspect, but then
other officers persist or continue to use force in an excessive and unreasonable manner. In
such a situation, the officer initially using justifiable force may have a duty to intervene to
protect the suspect from the other officers’ excessive force. As this case is at the pleading
stage, it would be premature to dismiss Plaintiff’s failure to protect claims because they
are plausible. Therefore, the undersigned recommends the Court retain Plaintiff’s failure
to protect claims against Warden Masters, Lt. Cavazos, Officer Chapa, and Sgt. Perez.
E. Procedural Due Process
Plaintiff claims that Captain Mata, Warden Masters, Lt. Cavazos, Officer Chapa,
and Sgt. Perez violated his procedural due process rights by forcing him into a riot,
allowing false disciplinary report to be written and convening a disciplinary hearing where
false testimony was introduced along with the suppression of Plaintiff’s evidence.
Plaintiff’s procedural due process claim has two elements: “first[,] a court must determine
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whether the plaintiff has a protected liberty or property interest[,] and then the court must
determine whether the state has provided adequate procedures for the vindication of that
interest.” Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016), as revised (June 27, 2016)
(citing Wilkinson v. Austin, 545 U.S. 209, 213 (2005)). When a liberty interest is implicated,
TDCJ officials must provide “the minimum requirements of procedural due process.”
Green v. McKaskle, 788 F.2d 1116, 1124–25 (5th Cir. 1986).
Plaintiff’s claims due not implicate procedural due process. First, regarding
Plaintiff’s complaints about the disciplinary case against him, Plaintiff ultimately
prevailed, and the case was reversed or dismissed in Plaintiff’s favor. The procedural
protections provided to Plaintiff worked to his benefit and he was provided sufficient due
process. Regarding Plaintiff’s claims he was forced into a riot without due process, these
claims do not raise due process implications. While an inmate may have plausible due
process rights in connection with his inmate classification or security designation, the
routine placing of an inmate in a cell or housing area after a medical appointment is not
such a situation. See Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (finding inmate
possessed liberty interest in avoiding assignment to supermax prison, but also discussing
cases holding limited, temporary segregation does not implicate due process) (citations
omitted).
F. Plaintiff’s Claims Against the TDCJ Director
Plaintiff claims the TDCJ Director violated his Eighth Amendment rights when he
failed to train the McConnell Unit Defendants and enacted an unconstitutional training
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program and policy that requires all inmates to be punished by a disciplinary report for the
misconduct of one inmate. “Personal involvement is an essential element of a civil rights
cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). There is no
vicarious or respondeat superior liability of supervisors under section 1983. Thompkins v.
Belt, 828 F.2d 298, 303-04 (5th Cir. 1987); See also Carnaby v. City of Houston, 636 F.3d
183, 189 (5th Cir. 2011) (the acts of subordinates do not trigger individual § 1983 liability
for supervisory officials). For a supervisor to be liable under § 1983, the plaintiff must
show (1) the supervisor failed to supervise or train the subordinate official; (2) a causal link
exists between the failure to train or supervise and the constitutional violation; and (3) the
failure to train or supervise amounts to deliberate indifference to the plaintiff’s
constitutional rights. Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).
Establishing a supervisor’s deliberate indifference generally requires a plaintiff to
demonstrate “at least a pattern of similar violations.” Rios v. City of Del Rio, Tex., 444 F.3d
417, 427 (5th Cir. 2006) (citations omitted). Plaintiff has not alleged any personal
involvement against the TDCJ Director or other supervisory official. Plaintiff’s allegations
against the Director are entirely conclusory and are not stated by sufficient facts to give
rise to a plausible claim. Therefore, the undersigned recommends Plaintiff’s claims against
the TDCJ Director be dismissed.
G. Other Claims Not Specifically Addressed in this Memorandum
To ensure justice and access to the courts, courts interpret pleadings of pro se
litigants liberally. See United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996) (citing
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United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983)). Pro se actions will not be
dismissed based on technical pleading defects and should be construed to ensure such
claims are given fair and meaningful consideration despite the unrepresented litigant’s
unfamiliarity with the law. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); See also
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Pro se parties are normally accorded more
leniency in the construction of their pleadings).
The undersigned has attempted to articulate and analyze Plaintiff’s claims in an
impartial manner consistent with providing appropriate leniency to pro se litigants while at
the same time requiring compliance with applicable pleading and screening standards. To
the extent Plaintiff is attempting to raise a claim not specifically addressed by the
undersigned in this Memorandum and Recommendation, Plaintiff has failed to state such
claim with sufficient factual detail or clarity to allow the claim to be identified, understood,
or analyzed by the Court.
As stated previously, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Again,
Plaintiff must allege sufficient facts in support of its legal conclusions that give rise to a
reasonable inference that Defendant is liable. Id.; Twombly, 550 U.S. at 556. Further, the
factual allegations must raise Plaintiff’s claim for relief above the level of mere
speculation. Twombly, 550 U.S. at 555.
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Plaintiff is advised that any claim not addressed in this Memorandum and
Recommendation is not currently before this Court because Plaintiff has failed to allege
sufficient facts or state such claims clearly.
V. CONCLUSION AND RECOMMENDATIONS
For purposes of screening, Plaintiff has stated Eighth Amendment claims of
excessive force and failure to protect against: (1) Warden Kelvin D. Masters; (2) Lt.
Adan A. Cavazos; (3) Sgt. Linda M. Perez; and (4) Officer Eisa M. Chapa in their
individual capacities. Accordingly, it is respectfully recommended that these claims be
RETAINED. The undersigned will order service on these defendants separately.
For the reasons set forth below, the undersigned further recommends: (1) Plaintiff’s
claims for money damages against Defendants in their official capacities be DISMISSED
without prejudice as barred by the Eleventh Amendment; and (2) all of Plaintiff’s
remaining claims be DISMISSED without prejudice for failure to state a claim pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
Respectfully submitted on November 13, 2025.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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