Gregory v. Texas Department of Criminal Justice, John Middleton Unit et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
MICHAEL DE’SEAN GREGORY,
Institutional ID No. 02408039,
Plaintiff,
v.
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE JOHN
MIDDLETON UNIT, et al.,
Defendants.
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Civil Action No. 1:22-CV-00156-H-BU1
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael De’Sean Gregory, an inmate incarcerated by the Texas Department
of Criminal Justice (TDCJ), brings a claim under 42 U.S.C. § 1983 against Warden Chimdi
Akwitti for unconstitutional conditions of confinement in violation of the Eighth
Amendment, as well as a claim against the Texas Department of Criminal Justice under
Title II of the Americans with Disabilities Act (ADA). See Dkt. No. 55. Defendants now
bring a Motion for Summary Judgment on the issues of administrative exhaustion and
qualified immunity. Dkt. No. 80.
For the reasons below, the undersigned RECOMMENDS that the Court GRANT
Defendants’ Motion. The undersigned further RECOMMENDS that the Court DENY AS
1 This case was stayed and administratively closed, then reopened and the stay lifted on August 12, 2025.
Dkt. No. 67.
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MOOT Gregory’s Motion to Appoint Counsel, Dkt. No. 89, Motion to Expedite, Dkt. No.
88, and Motion to Assist with Mediation, Dkt. No. 90.
I. JURISDICTION
Gregory brings this action under 42 U.S.C. § 1983, providing the Court with
subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3). Venue is proper in the
Northern District of Texas, Abilene Division, because the events giving rise to Gregory’s
claims occurred at TDCJ’s John Middleton Unit in Jones County, Texas. See Dkt. No. 1.
The undersigned has the authority to enter these Findings, Conclusions, and
Recommendations after United States District Court Judge James Wesley Hendrix referred
Defendants’ Motion, and all related procedural motions, to the undersigned. Dkt. No. 87;
28 U.S.C. § 636(b)(1)(B).
II. FACTUAL BACKGROUND
As alleged, Gregory and 176–200 other inmates were required to sleep on the floor
of the gym while at the Middleton Unit. Dkt. No. 1 at 4. Gregory is one of at least eleven
“gym floor” plaintiffs who allege similar facts. Dkt. No. 55 at 2. Through the Court’s
review of the gym-floor cases, the Court learned that inmates were assigned to the gym
according to an overarching policy of placing inmates with heat restrictions in air-
conditioned housing. Id. at 3 fn 3; Dkt. No. 82 at 392–93. Each plaintiff, including Gregory,
appears to have had a heat restriction based on a medical condition, a mental health
condition, or a prescribed medication, and the gym at the Middleton Unit had air
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conditioning.2 Id.
Gregory spent a total of 35 days assigned to the gym floor while housed at the
Middleton Unit between September 6, 2022, and November 11, 2022.3 Dkt. Nos. 1 at 4; 82
at 392–93; 80 at 11–16, 34, 37. He was initially assigned to the gym floor for 3 days upon
arrival at Middleton—from September 6, 2022, to September 9, 2022—and was later
reassigned for a consecutive 32-day period from October 10 to November 11, 2022. Dkt.
No. 82 at 392–93. During this same timeframe, Gregory also spent a total of 25 days housed
in an air-conditioned cellblock at the Middleton Unit and an additional total of 10 days at
the Montford Unit. Id.
During the 35 days he was assigned to the gym floor, Gregory alleges he slept on
the floor without a bed alongside 176–200 other inmates, some of whom were sick. Dkt.
No. 1 at 4. He further alleges that the gym was equipped with only two toilets and that
inmates were required to walk outside to another building to take “freezing cold” showers.
Id.; Dkt. No. 40 at 1. According to Gregory, the gym was filthy and infested with rats. Dkt.
No. 1 at 4. Inmates were forced to sleep on the ground among the rats, which also ran
2 It is not clear from the record exactly what parts of the Middleton Unit had air-conditioning and the
availability of those air-conditioned parts. Defendants state that the gym was “[a]n available location within
the Middleton Unit at that time that could accommodate inmates with such air-conditioning requirements.”
Dkt. No. 82 at 393. But they also mentioned air-conditioned transient cellblocks where Gregory was
sometimes housed. Id. at 394.
3 The number of days spent in various locations in this paragraph is derived from Defendants’ filing of a
sworn declaration from the Director of Classification and Records, Timothy Fitzpatrick. Dkt. No. 82 at
392–93. Gregory only says that he entered the Middleton Unit on September 6, 2022, and that at the time
he signed the lawsuit, October 14, 2022, he was “currently being housed … in the gym.” Dkt. No. 1 at 4.
Gregory never clarifies, in any of his pleadings, the exact dates he was assigned to the gym floor or when
he left the gym floor. The summary judgment record—both the sworn declaration and the medical records—
support a total of 35 days on the gym floor; they are not inconsistent with Gregory’s assertions, and Gregory
did not dispute these dates in response to Defendants’ Motion.
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through the chow halls. Dkt. No. 25 at 3. The chow hall allegedly contained birds sitting
on tables and smashed gecko lizards on the walls. Id. Gregory alleges that these conditions
persisted for “several months.”4 Id. at 6.
Gregory alleges that a combination of factors—including (1) withdrawal symptoms
he experienced at the Middleton Unit after being forced to abruptly discontinue his
Klonopin medication, (2) exposure to other sick inmates, and (3) freezing-cold showers—
caused him to lose approximately 50 pounds in three weeks and to contract a severe upper
respiratory infection that resulted in coughing and sneezing blood for more than three
months. Dkt. Nos. 25 at 6; 40 at 2. He further alleges that these conditions caused him
“extreme PTSD and memory loss” and left his body “a lot weaker and built differently.”
Dkt. No. 25 at 6.
Gregory makes only generalized allegations that Akwitti was “completely aware of
what [was] going on” and “well aware of these violations.” Dkt. No. 1 at 3–4. He further
alleges that Akwitti “is at the unit quite often” and “always says that he knows about the
violations and that it is against the law.” Dkt. No. 25 at 2. According to Gregory, despite
this purported knowledge, Akwitti nevertheless allowed the allegedly inhumane conditions
to persist “unchecked,” notwithstanding inmates’ months-long attempts to obtain reform.
Id.
4 In support of their assertion that Akwitti was not deliberately indifferent to the conditions, Defendants rely
on Gregory’s purported “admission” that conditions improved after he filed suit. Dkt. No. 80 at 10. But
when Gregory filed this action, he was still “currently” housed on the gym floor. Dkt. No. 1 at 4. Thus,
Gregory’s later statement that some conditions have improved since the filing of the lawsuit, see Dkt. No.
25 at 5, does not establish that conditions improved while he was subjected to them. In the light most
favorable to Gregory, it could reflect his understanding that certain conditions were improved after he was
no longer housed on the gym floor.
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Gregory brings two related claims: (1) a § 1983 conditions-of-confinement claim
against Akwitti in his individual capacity; and (2) a claim against TDCJ under Title II of
the ADA for nominal damages. See Dkt. No. 55 (dismissing all other claims). Gregory
seeks $350,000 in compensatory damages. Dkt. No. 40 at 1. He did not respond to
Defendants’ assertion of qualified immunity.
III. PROCEDURAL HISTORY
Gregory’s conditions-of-confinement claim survived preliminary screening, and
Akwitti was ordered to file an answer or other responsive pleading. Dkt. No. 57. Gregory’s
Title II ADA claim likewise survived screening, and TDCJ was ordered to respond. Id.
Defendants subsequently moved to dismiss for failure to state a claim. Dkt. No. 60. The
motion did not assert failure to exhaust administrative remedies. Instead, Defendants
argued that dismissal was warranted because (1) Gregory failed to adequately plead the
elements of his Eighth Amendment and ADA claims, (2) he sought compensatory damages
without alleging a physical injury, and (3) Akwitti was entitled to qualified immunity. Dkt.
No. 67 at 5.
The Court denied the motion, concluding that Defendants failed to show that
Gregory had not plausibly alleged the elements of his claims, including those necessary to
overcome qualified immunity. The Court further noted that this was the same plausibility
standard the claims had already satisfied at the screening stage.5
5 Regarding the first prong of qualified immunity, the Court stated: “As discussed above, the undersigned
finds—now for the second time—that Gregory has alleged sufficient facts which, if true, state a
constitutional violation, both for screening and motion to dismiss purposes.” Dkt. No. 67 at 10. As to the
second prong, the Court concluded: “Accepting Gregory’s allegations as true at this juncture, the
undersigned finds it plausible that these conditions, lasting for almost two months, plausibly combined to
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Defendants now file this Motion for Summary Judgment, raising the issues of
administrative exhaustion—for the first time6—as well as qualified immunity. Dkt. No. 80.
Because the undersigned finds that Gregory failed to properly exhaust his administrative
remedies before filing suit, the Court does not address qualified immunity.
IV. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A genuine dispute of material fact exists if a reasonable jury could
enter a verdict for the non-moving party.” Doe v. Edgewood Indep. Sch. Dist., 964 F.3d
351, 358 (5th Cir. 2020). The moving party “bears the initial responsibility of . . . demon-
strat[ing] the absence of a genuine issue of material fact.” Jones v. United States, 936 F.3d
318, 321 (5th Cir. 2019) (cleaned up). The moving party may “identify those portions of
[the record] which it believes demonstrate [that] absence.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
In evaluating a summary judgment motion, the Court draws all reasonable infer-
ences in the light most favorable to the nonmoving party. Darden v. City of Fort Worth, 880
have the ‘mutually enforcing effect’ of violating Gregory’s Eighth Amendment rights.” Id. at 18.
6 Although Defendants brief the issue of exhaustion for the first time on this Motion, they did assert it as an
affirmative defense in their Answer: “Defendants assert that Plaintiff may have failed to properly exhaust
his administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act. 42 U.S.C.
§ 1997e.” Dkt. No. 71 at 5. Although this Motion comes more than three years after the case was filed,
“district courts have no discretion to waive the PLRA's pre-filing exhaustion requirement.” Gonzalez v.
Seal, 702 F.3d 785, 787–88 (5th Cir. 2012).
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F.3d 722, 727 (5th Cir. 2018). However, “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). An issue is
“genuine” if “the evidence is such that a reasonable [factfinder] could return a verdict for
the nonmoving party.” Id. at 248 (as cited by Jones, 936 F.3d at 321). “[A] fact is ‘material’
if its resolution could affect the outcome of the action.” Dyer v. Houston, 964 F.3d 374,
379 (5th Cir. 2020) (citation and quotation marks omitted).
“[I]f the movant bears the burden of proof on an issue, either because he is the plain-
tiff or [ ] a defendant . . . asserting an affirmative defense, he must establish beyond perad-
venture all of the essential elements of the claim or defense to warrant judgment in his
favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). “The court has noted
that the ‘beyond peradventure’ standard is ‘heavy.’” Carolina Cas. Ins. Co. v. Sowell, 603
F. Supp. 2d 914, 923–24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont’l Cas. Co. v. St.
Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitz-
water, J.)).
Once the movant has satisfied this burden, the burden shifts to the nonmovant to
demonstrate that a genuine issue of material fact does exist and that the evidence, viewed
in favor of the nonmovant, permits a jury verdict for the nonmovant. Lyons v. Katy Indep.
Sch. Dist., 964 F.3d 298, 302 (5th Cir. 2020). The nonmovant must “go beyond the plead-
ings” and produce evidence showing that there is a genuine issue of fact. Celotex, 477 U.S.
at 324. However, the nonmoving party cannot overcome its burden by merely alleging legal
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conclusions or unsubstantiated assertions; instead, it must present affirmative evidence that
supports the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586
(“[T]he purpose of summary judgment is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial”).
The Court must consider materials cited by the parties, but it may also consider other
materials in the record. Fed. R. Civ. P. 56(c)(3). Nevertheless, Rule 56 does not impose a
duty on the Court to “sift through the record in search of evidence” to support the non-
movant’s opposition to the motion for summary judgment. Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16, n.7 (5th Cir. 1992)).
B. Exhaustion Under the PLRA
The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). The “exhaustion requirement applies to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle,
534 U.S. 516, 532 (2002).
Exhaustion under the PLRA is mandatory, and the requirement is strictly construed.
See Woodford v. Ngo, 548 U.S. 81, 85 (2006). “Mere ‘substantial compliance’ with
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administrative remedy procedures does not satisfy exhaustion.” See Dillon v. Rogers, 596
F.3d 260, 268 (5th Cir.2010) (quoting Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.
2001)). District courts lack discretion to excuse a failure to exhaust. See Woodford, 548
U.S. at 85; see also Ross v. Blake, 578 U.S. 632, 642 (2016).
“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of
proper exhaustion.” See Jones v. Bock, 549 U.S. 199, 218 (2007). The PLRA’s exhaustion
requirement “is satisfied only if the prisoner ‘pursue[s] the grievance remedy to
conclusion.’” Wilson v. Epps, 776 F.3d 296, 301 (5th Cir. 2015) (quoting Wright, 260 F.3d
at 358). “Proper exhaustion requires that the prisoner not only pursue all available avenues
of relief but also comply with all administrative deadlines and procedural rules.” Johnson
v. Kukua, 342 F. Appx. 933, 934 (5th Cir. 2009) (per curiam) (citing Woodford, 548 U.S.
at 89–93).
The PLRA contains only “one textual exception to its otherwise stringent exhaustion
requirement: availability. Inmates who fail to exhaust can proceed in court by showing that
administrative remedies were not ‘available.’ An administrative remedy is available if it is
‘capable of use to obtain some relief for the action complained of.’” Ross, 578 U.S. at 642
(cleaned up). A remedy is “not available if ‘it operates as a simple dead end, . . .’ if it is ‘so
opaque that it becomes, practically speaking, incapable of use,’ or if prison administrators
prevent access to it ‘through machination, misrepresentation, or intimidation.’” Valentine
v. Collier, 978 F.3d 154, 160 (5th Cir. 2020) (quoting id. at 643–44).
Finally, failure to exhaust is an affirmative defense. Jones, 549 U.S. at 216.
“Consequently, [a defendant] must establish beyond peradventure all of the essential
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elements of the defense to warrant summary judgment in their favor.” Dillon, 596 F.3d at
266 (citing Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003)).
V. ANALYSIS
Defendants contend that “Gregory did not properly exhaust any of his claims against
TDCJ or Akwitti before filing suit.” Dkt. No. 80 at 23. The undersigned agrees.
For an inmate to demonstrate “proper exhaustion,” the inmate “must complete the
administrative review process in accordance with the applicable rules, including deadlines,
as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 88
(2006). TDCJ lays out its grievance procedures in the TDCJ Offender Orientation
Handbook.7 A Step 1 grievance, reviewed by officials at the inmate’s assigned facility, must
be filed within fifteen days of the alleged incident or challenged event. See TDCJ’s
Offender Orientation Handbook at 73–75. If the Step 1 response is unsatisfactory, the
inmate has fifteen days to file a Step 2 grievance, which serves as an appeal. Id. Gregory
failed to comply with these deadlines and procedural rules, and he did not pursue his
grievances to conclusion before filing this suit in federal court.
Gregory filed only three Step 1 grievances—each on October 12, 2022—before
filing suit on October 20, 2022. Those grievances alleged: (1) that Officer Hernandez
provided peanut butter sandwiches despite Gregory’s “peanut butter free” diet and made
derogatory remarks; (2) that not having a paper ID caused problems and that his property
7 The undersigned takes judicial notice of the Handbook because it is publicly available online and can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned. E.g.,
Cantwell v. Sterling, 778 F.3d 507, 509 (5th Cir. 2015) (per curiam) (taking judicial notice of the
Handbook); see FED. R. EVID. 201(b). The Handbook is available online at:
https://www.tdcj.texas.gov/documents/Offender_Orientation_Handbook_English.pdf.
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had not been returned; and (3) that he was forced to stop taking Klonopin “cold turkey”
and that the peanut butter sandwiches caused significant weight loss. Dkt. No. 82 at 4–5,
14–15, 59–60.
The first grievance was resolved on January 10, 2023, with no evidence found to
support Gregory’s allegations. Id. at 7. The second grievance was rejected for “excess of 1
[grievance] every 7 days” and returned for resubmission. Id. at 15. The third grievance,
although potentially subject to the same rejection, was investigated for medical issues, and
the reviewing official determined that Gregory’s mental health needs were met; it was
resolved on December 5, 2022. Id. at 19, 59–60.
After filing suit, Gregory submitted another Step 1 grievance on October 24, 2022,
restating the prior claims and alleging he had not received responses. Id. at 21–22. That
grievance was rejected as “redundant.” Id.
The only other grievances Gregory filed between May 1, 2022, and March 31, 2023,
were submitted after he filed suit and concerned: (1) being taken off Klonopin “cold
turkey”; (2) a doctor at Montford allegedly failing to provide side-effect medication; (3)
mail delays; and (4) denial of phone calls to his lawyer. See id. at 2–65. Several of these
grievances were rejected as “redundant” or in “excess of 1 [grievance] every 7 days,” and
others were investigated with no misconduct or mistreatment found. Id.
Gregory filed only one Step 2 grievance—on March 3, 2023—more than four
months after filing suit and long past the 15-day deadline following the resolution of the
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original Step 1 grievance in early December 2022.8 Because Gregory did not timely pursue
any grievance to conclusion prior to filing this lawsuit, he failed to exhaust his
administrative remedies for both his § 1983 prison conditions claims and his federal ADA
claims. See 42 U.S.C. § 1997e(a); see also Wiley v. McKellar, 167 F. App’x 385 (5th Cir.
2006) (inmate must exhaust administrative remedies under the ADA for prison-life claims
before filing § 1983 suit). Accordingly, Defendants are entitled to summary judgment on
all claims.
Additionally, the purpose of the PLRA’s exhaustion requirement is to give officials
“time and opportunity to address complaints internally.” Johnson v. Johnson, 385 F.3d 503,
516 (5th Cir. 2004). At the core of Gregory’s claims are allegations that the deplorable
conditions in the gym—sleeping on the floor, cold showers, rats, and overcrowding—
compounded by his severe mental health issues and Klonopin withdrawals over 35 days,
amounted to cruel and unusual punishment. He also claims that TDCJ discriminated against
him by assigning him to the gym floor because of a heat sensitivity caused by his mental
health medications. Yet, all of Gregory’s grievances—including those that were rejected—
did little, if anything, to alert officials to the allegedly unconstitutional gym conditions or
to any alleged discrimination based on his mental health disability, which form the basis of
his current claims.9 Accordingly, even if Gregory had timely filed both Step 1 and Step 2
8 Gregory appealed grievance #2023017625, which was returned to him on December 5, 2022. See Dkt.
No. 80 at 57–60. The Step 1 response included instructions stating: “If you are dissatisfied with the Step 1
response, you may submit a Step 2 (I-128) to the Unit Grievance Investigator within 15 days from the date
of the Step 1 response. State the reason for appeal on the Step 2 Form.” Id. at 60.
9 This is not a case in which the PLRA’s “availability” exception excuses Gregory’s failure to exhaust.
Gregory’s numerous grievance submissions, along with TDCJ’s investigations of grievances that were both
accepted and some that should have been rejected, demonstrate that the administrative process was available
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grievances, his submissions could still be challenged if they failed to provide sufficient
detail to alert officials to the alleged constitutional violations.
Gregory does not dispute that the summary judgment record shows he untimely filed
his Step 2 grievance after initiating this lawsuit.10 Therefore, he has failed to present any
affirmative evidence creating a genuine issue of material fact. Celotex, 477 U.S. at 324.
When an inmate fails to exhaust his available administrative remedies through the prison
grievance process prior to filing his section 1983 action, the Court must dismiss the
action. Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012). For purposes of the affirmative
defense of exhaustion, Defendants have met their burden to show beyond peradventure that
Gregory did not exhaust his administrative remedies prior to filing suit. Defendants’
Motion for Summary Judgment should be GRANTED.11
VI. CONCLUSION
Accordingly, the undersigned RECOMMENDS that the Court GRANT Defendant
Akwitti and Defendant TDCJ’s Motion for Summary Judgment on the issue of exhaustion.
VII. RIGHT TO OBJECT
A copy of these Findings, Conclusions, and Recommendations shall be served on
to him. See Ross, 578 U.S. at 642.
10 Gregory did not produce any evidence in response to Defendants’ motion. The Court may, however,
consider Gregory’s verified allegations—including his complaint and responses to the magistrate judge’s
questionnaire—as competent summary judgment evidence. See Hart v. Hairston, 343 F.3d 762, 765 (5th
Cir. 2003). However, these verified pleadings do not raise a material fact issue.
11 Even if the Court were to assume both that Gregory had properly exhausted his claims and established a
genuine issue of material fact on his constitutional rights being violated, Defendants will be entitled to
qualified immunity for the same reasons as explained in the other gym floor cases involving an assertion of
qualified immunity, i.e., Gregory’s right to be free from the conditions of confinement he alleges was not
clearly established at the time.
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all parties in the manner provided by law. Any party who objects to any part of these Find-
ings, Conclusions, and Recommendations must file specific written objections within four-
teen days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
To be specific, an objection must identify the specific finding or recommendation to which
the objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s Findings, Conclusions, and Recommendations where the disputed de-
termination is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written objec-
tions will bar the aggrieved party from appealing the factual findings and legal conclusions
of the magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417
(5th Cir. 1996).
ORDERED this 9th day of February 2026.
JOHN R. PARKER
UNITED STATES MAGISTRATE JUDGE
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