Crowley v. Collier et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MICHAEL BOYD CROWLEY, §
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Plaintiff,
v. CIVIL ACTION NO. 2:25-CV-00218
B. COLLIER, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
TO RETAIN CASE AND DISMISS CERTAIN CLAIMS
Plaintiff Michael Boyd Crowley, a Texas inmate appearing pro se and in forma
pauperis, has 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 the reasons discussed below, the undersigned recommends that many of
Plaintiff’s claims be retained. The undersigned, therefore, will order service of process on
those claims against the appropriate defendants. The undersigned recommends further that
Plaintiff’s remaining claims be dismissed either without prejudice or with prejudice as
frivolous or for failure to state a claim for relief.
United States District Court
Southern District of Texas
ENTERED
May 22, 2026
Nathan Ochsner, Clerk
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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. BACKGROUND
A. Procedural Background
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Division (TDCJ-CID) and is currently housed at the Hughes Unit in Gatesville,
Texas. Plaintiff’s allegations and claims in this case arise in connection with his previous
housing assignment at the McConnell Unit in Beeville, Texas.
In this action, Plaintiff sues the following defendants:
● Bryan Collier, TDCJ’s former Executive Director (“Executive Director
Collier”);
● Elbert Holmes, TDCJ’s Regional Director for Region IV which includes the
McConnell Unit (“Regional Director Holmes”);
● A. Amonett, the McConnell Unit warden during the summers of 2023 and
2024 (“Warden Amonett”);
● P. Samaniego, a McConnell Unit assistant warden during the summers of 2023
and 2024 (“Assistant Warden Samaniego”);
● C. Flannell, a McConnell Unit assistant warden during the summer of 2023
(“Assistant Warden Flannell”);
● Herbst, a McConnell unit captain during the summer of 2023 (“Captain
Herbst”);
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● A. Cavazos, a McConnell Unit captain during the summers of 2023 and 2024
(“Capt. Cavazos”);
● Wilkens, a McConnell Unit captain during the summer of 2024 (“Capt.
Wilkens”);
● A. Bliedrey, a McConnell Unit lieutenant during the summer of 2023 (“Lt.
Bliedrey”);
● D. Dougherty, a McConnell Unit lieutenant during the summer of 2023 (“Lt.
Dougherty”);
● R. Martinez, a McConnell Unit sergeant during the summer of 2023 (“Sgt.
Martinez”);
● K. Ralphs, a McConnell Unit sergeant during the summers of 2023 and 2024
(“Sgt. Ralphs”);
● J. Perez, a McConnell Unit sergeant during the summer of 2023 (“Sgt. J.
Perez”);
● D. Austin, a McConnell Unit sergeant during the summer of 2023 (“Sgt.
Austin”);
● S. Ramirez, a McConnell Unit sergeant during the summer of 2023 (“Sgt.
Ramirez”);
● Hampson, a McConnell Unit sergeant during the summer of 2023 (“Sgt.
Hampson”);
● Ms. Perez, a McConnell Unit sergeant during the summer of 2024 (“Sgt. Ms.
Perez”);
● Tiamiyu, a McConnell Unit sergeant during the summer of 2024 (“Sgt.
Tiamiyu”);
● Gallaway, a McConnell Unit sergeant during the summer of 2024 (“Sgt.
Gallaway”);
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● Montavias, a McConnell Unit sergeant during the summer of 2024 (“Sgt.
Montavias”);
● Mr. Perez, a McConnell Unit sergeant during the summer of 2024 (“Sgt. Mr.
Perez”);
● E. Chapa, a McConnell Unit correctional officer during the summers of 2023
and 2024 (“Officer Chapa”);
● E. Sanchez, a McConnell Unit correctional officer during the summer of 2023
(“Officer Sanchez”);
● Liserio, a McConnell Unit correctional officer during the summer of 2023
(“Officer Liserio”);
● Raone, a McConnell Unit correctional officer during the summer of 2023
(“Officer Raone”);
● Oki, a McConnell Unit correctional officer during the summer of 2024
(“Officer Oki”);
● Contrerrez a McConnell Unit correctional officer during the summer of 2024
(“Officer Contrerrez”);
● Alonso, a McConnell Unit correctional officer during the summer of 2024
(“Officer Alonso”);
● Lopez, a McConnell Unit correctional officer during the summer of 2024
(“Officer Lopez”);
● De La Cruz, a McConnell Unit correctional officer during the summer of 2024
(“Officer De La Cruz”);
● Ms. Perez, a McConnell Unit correctional officer during the summer of 2024
(“Officer Ms. Perez”);
● Florez, a McConnell Unit correctional officer during the summer of 2024
(“Officer Florez”);
● Gbrrjh, a McConnell Unit correctional officer during the summer of 2024
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(“Officer Gbrrjh”);
● Melchor, a McConnell Unit correctional officer during the summer of 2024
(“Officer Melchor”);
● Unknown McConnell Unit correctional officers during the summers of 2023
and 2024;
● M. Thompson, McConnell Unit Law Library Supervisor during the summers
of 2023 and 2024 (“Law Librarian Thompson”); and
● K. Gonzales, a McConnell Unit counsel substitute during the summer of 2023
(“Counsel Substitute Gonzales”).
(D.E. 1, pp. 4-8). Plaintiff’s claims in this action arise in connection with the alleged
excessive heat conditions at the McConnell Unit during the summers of 2023 and 2024.
Plaintiff seeks declaratory, injunctive, and monetary relief. Id. at 67-70. At the Court’s
direction, Plaintiff has filed a More Definite Statement in which he answered several
questions and directives to explain his claims. (D.E. 15). Plaintiff alleges the following in
his Complaint and More Definite Statement.
1. General Allegations Regarding Exposure to Texas Summer Heat
Plaintiff alleges the following general facts regarding TDCJ’s inmates exposure to
Texas summer heat:
● approximately 85,000 TDCJ inmates “are forcefully exposed to the brutal and
dangerous Texas summer heat indices (D.E. 1, p. 9);
● thousands of these inmates exposed to the summer heat have “comorbidities
and or tale medications that make them susceptible to the heat” (id.);
● the TDCJ does not have climate control abilities for most of its inmates (id.);
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● unidentified TDCJ officials have knowledge that TDCJ inmates have died
from the forced exposure to the dangerous heat conditions (id.);
● a climate-controlled environment is a necessity in the TDCJ sleeping and
living areas units and constitute “a modern standard of decency that most
TDCJ residents are excluded from” (id. at 10-11);
● Texas law requires that temperatures in its prisons be between 65 and 85
degrees Fahrenheit (id. at 11); and
● rather than implement climate-controlled environment in its units, TDCJ
officials “choose to implement a statewide heat mitigation plan knowing that it
can not be relied on to protect residents in their care and custody.” id.
Plaintiff explains that the high temperatures and high humidity which he has been
forced to endure “is enough to compromise [his] ability to thermoregulate and maintain
homeostasis.” Id. at 12. Plaintiff states that he is subject to heat exhaustion, which includes
the following symptoms: “profuse perspiration, weakness, tachycardia (rapid pulse),
dizz[i]ness, headaches, cool skin, pale and clammy skin, normal or subnormal body
temperatures, nausea, vomiting[,] and [] unconsciousness.” Id. at 13. Plaintiff alleges
further:
● heat exhaustion can lead quickly to heat stroke, which includes the following
symptoms and other adverse outcomes: diminished or absent perspiration, hot
and dry and flushed skin, increased body temperatures, delirium, convulsions,
seizures, permanent brain damage, and death;
● exposure to excessive heat can cause “edema, miliaria[, and] heat rash”;
● according to the World Health Organization, excessive heat “increases death
rates from cardiovascular and respiratory disease by placing extra stress on
already stressed organs”;
● heat is the number one weather-related killer in the United States;
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● heat-related deaths and heat rash among TDCJ inmates are underreported; and
● Plaintiff “has suffered symptoms of heat illness, anxiety, insomnia[,] and[]
depression every summer while in the care and custody of the State of Texas”;
Id. at 13-14.
Plaintiff alleges that Defendants are aware that high temperatures, high humidity, and
high heat index levels cause dangerous conditions for TDCJ inmates in the form of fatigue,
heat-related illnesses, or even death. Id. at 15. Plaintiff asserts that TDCJ has enacted
Administrative Directive 10.64 (“AD-10.64”) to enact procedures to mitigate against
excessive heat during summertime. Id. at 16. Plaintiff explains that AD-10.64:
● requires unit wardens to review with unit staff before April 15 of each year the
status of HVAC units, showers, temperatures, fans, ice machines, ventilations
systems, exhaust fans, and respite areas throughout the unit;
● requires wardens to address any research deficiencies with the Regional
Director and request extra resources when necessary;
● directs that TDCJ unit staff be provided with training regarding excessive heat
conditions;
● requires wardens to ensure training to prevent injuries caused by excessive
heat conditions;
● requires all units to conduct standardized training programs on an annual basis
using health care staff;
● requires officers to be extensively trained on what to do during excessive heat
periods, including (1) carrying a “FN-1181 Employee Information Pocket
Card on their person while working” in excessive heat conditions”; and
conducting a security check to encourage water intake and respite;
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● requires TDCJ inmates identified as being more susceptible to excessive heat
conditions be placed on a Heat Restriction List such that staff shall conduct
wellness checks on these inmates and immediately seek care for anyone
requesting medical assistance or exhibiting signs of illness (regardless whether
or not on the Heat Restriction List);
● requires TDCJ inmates to be allowed access to an air-conditioned respite area
24 hours per day and seven days per week even if the inmate is not feeling ill
at the time of the request or the request is made during count time;
● permits TDCJ inmates to stay in respite for as long as needed;
● permits extra showers for TDCJ inmates during times of excessive heat, “but
only when possible”;
● requires drinking water and cups to always be available to TDCJ inmates in
conditions of excessive heat;
● requires water, cups, and ice to be provided to TDCJ inmates in their living
areas, recreational areas, and during meal times;
● requires shower temperatures to be lowered in resident areas;
● allows TDCJ inmates to wear t-shirts and gym shorts in the dayroom and at
recreation;
● allows “for the purchase of electrolytes without [a]ffecting commissary spends
on commissary days”; and
● initiates an “I.C.S. when heat or a heat wave lasts more than three days.”
Id. at 16-18, 54.
Plaintiff next asserts that AD-10.64 is inadequate and deficient for these reasons:
● “overconsumption of water may dilute electrolytes and salt in the body which
could result in serious side effects”;
● the over reliance on hydration during excessive heat conditions may cause
adverse effects to TDCJ inmates with sickness, fever, or vomiting issues;
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● there are no provisions for TDCJ inmates who are ill to be placed in a
reasonable temperature environment while sick;
● any reliance of TDCJ staff “on sweating as a heat mitigation effort is
compromised in a high heat and high humid environment”;
● reliance of TDCJ staff on airflow, industrial fans, and small fans to mitigate
heat becomes compromised when the heat index is 95 degrees or higher;
● the Centers for Disease Control (“CDC”) has reported that the use of fans in
95 degree conditions is dangerous;
● the use of cool showers is ineffective in preventing heat issues and may not
even be available in the first place under AD-10.64 in times of dangerous heat;
● respite areas are not always available with respite being discouraged due to
over restrictive officers and limits on activity while there;
● the use of respite can counteract the person’s ability to acclimate to extreme
temperatures, making exposure to excessive heat more oppressive and
dangerous;
● TDCJ has systemic staffing issues across its units, impacting the effectiveness
of heat mitigations policies under AD-10.64, through lack of wellness checks
and other essential aspects;
● excessive heat conditions adversely impact TDCJ officers who are in poor
health and work long hours, making them less effective in helping inmates in
these conditions;
● AD-10.64 has no provision for storing Keep-on-Person (“KOP”) medications
that must be stored at room temperature;
● cold water and ice is not always available during excessive conditions for
TDCJ inmates; and
● TDCJ officials rely on the heat-mitigation policies in AD-10.64 knowing that
it is inadequate to stop or prevent heat illness, heat rash, or death.
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Id. at 18-21.
According to Plaintiff, heat index’s during the summers of 2023 and 2024 routinely
exceeded 108 degrees. Id. at 54. Despite these heat indexes, Plaintiff states he was denied or
delayed access to respite and was denied access to medical screening during these summer
months. Id. Despite being required to carry a “medical heat restrictions list and conduct
wellness checks on Plaintiff because he was on that list,” Plaintiff alleges that wellness
checks were never performed on him during the summers of 2023 and 2024. Id.
Plaintiff claims that Regional Director Holmes, who left as McConnell Unit’s warden
during the summer of 2023, was aware that the McConnell Unit was short staffed and needed
more staff to carry out the mandates of AD-10.64. Id. at 55. However, Plaintiff asserts that
Regional Director Holmes never attempted to provide these resources even after becoming a
regional director. Id.
Plaintiff asserts that Warden Amonett, Assistant Warden Samaniego, and Assistant
Warden Flannell also knew that the McConnell Unit was short staffed to handle the
mandates of the AD-10.64 and: (1) never attempted to provide staffing resources or request
such resources from Regional Director Holmes; and (2) ordered subordinate officers to
instead kick people out of the respite areas after 15-30 minutes. Id. Plaintiff asserts that
Regional Director Holmes, Warden Amonett, Assistant Warden Samaniego, and Assistant
Warden Flannell each knew that heat-restricted inmates like Plaintiff were at risk of serious
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heat illnesses and due to excessive heat conditions coupled with the lack of sufficient staff at
the McConnell Unit during the summers of 2023 and 2024. Id.
Likewise, according to Plaintiff, Executive Director Collier also was aware that AD-
10.64 was insufficient to protect TDCJ inmates, including Plaintiff, “from the murderous
Texas summer climate.” Id. Plaintiff state that Executive Director Collier:
● reviewed reports of TDCJ inmate deaths and heat illness incidents and was
aware of the wrongful death suits brought against TDCJ and other heat-
litigation suits filed by inmates;
● failed to provide for appropriate staffing on the McConnell Unit despite
knowing that the AD-10.64 measures would be subverted when a TDCJ unit is
short of staff; and
● knew that TDCJ residents were endangered by summer heat when a unit does
not have sufficient summer staff.
Id. at 56.
Lastly, Plaintiff claims that Warden Amonett, Assistant Warden Samaniego, Assistant
Warden Flannell, Capt. Wilkens, Capt. Herbst, and Capt. Cavazos failed to supervise and
discipline subordinate McConnell Unit officers for not adhering to the heat mitigations
measures in AD-10.64. Id. According to Plaintiff, “these defendants knew and know that
their inaction in taking corrective action placed Plaintiff and others at an even greater risk of
unreasonable harm.” Id.
2. Plaintiff’s Places of Confinement and Relevant Custodial Status
Plaintiff was housed at the McConnell Unit during the summers of 2023 and 2024.
(D.E. 1, p. 3). Plaintiff states that his custodial status was G3 for most of the 2023 summer
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until it was changed to G4 sometime in August 2023. (D.E. 15, p. 1). According to Plaintiff,
Sgt. Ramirez falsified a major disciplinary case brought against Plaintiff which resulted in
his custodial status being reduced to G4 at that time. Id. at 2.
In February 2024, Plaintiff’s custodial status improved to G2 where it has remained.
Id. In November 2024, Plaintiff was transferred from the McConnell Unit to the Clemens
Unit in Brazoria, Texas. (D.E. 1, p. 3). In May 2025, Plaintiff was transferred from the
Clemens Unit to the Hughes Unit, where he currently resides. Id.
3. Plaintiff’s Alleged Medical Conditions and Impact of Heat
Plaintiff is 36 years old and is 5’11” tall. (D.E. 15, p. 1). At the time he prepared his
More Definite Statement, he weighed 210 pounds. Id. Plaintiff states he “suffers from
physiological and electro-physiological disorders.” (D.E. 1, p. 3). According to Plaintiff, he
has suffered with mental issues his whole life as well as alcohol and drug addiction. Id.
Sometime either in 2006 or 2007, Plaintiff was diagnosed with Wolff-Parkinson-
White Syndrome.1 (D.E. 1, p. 3; D.E. 15, p. 4). After undergoing an ablation in 2007,
Plaintiff says, he continued to suffer with an irregular heartbeat. (D.E. 1, p. 3). Plaintiff
states that he was diagnosed with a thyroid disfunction in 2020. Id. In addition, Plaintiff
1 A federal court in the Eastern District of Texas has discussed Wolff-Parkinson-White Syndrome (referring to it by its
initials, “WPW”):
According to the American Heart Association, in a normal heart, electrical signals use one pathway,
the atrio-ventricular (AV) node. These signals cause the heart to beat, and so the timing of the signals
is important. In WPW, there is an extra conduction pathway, which can cause the signal to arrive at
the ventricles (the lower chambers of the heart) too soon. This can result in tachycardia, a rapid heart
rhythm, which in turn can cause dizziness, chest palpitations, fainting, or cardiac arrest.
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asserts he was diagnosed with the following conditions: (1) mitral valve prolapse and anxiety
in 2007; (2) anxiety, substance abuse disorder, anti-social personality disorder in 2015-2016;
(3) irregular heartbeat, palpitations, and back pain in 2018-2020; (4) insomnia and
depression sometime between 2022 and 2024; and carpal tunnel syndrome , a cist in the
wrist, and Helicobacter Pylori (“H-Pylori”) in and around February 2025. (D.E. 1, p. 3; D.E.
15, p. 4). Plaintiff states:
● in 2023, he took Citalopram for depression which was discontinued in August
2023;
● in 2024, he was prescribed Benadryl for an unspecified medical condition;
● in 2025, he was “supposed to” take Loperamide and Acetaminophen for
unspecified conditions; and
● two other medications for H-Pylori.2
(D.E. 15, p. 5). Plaintiff indicates he will wait on beginning his second treatment for H-
Pylori until the winter because of the dangers associated with taking these medications
during the summer. Id. Plaintiff explains further that Citalopram affects the Hypothalamus
and his ability to tolerate heat. Id. Plaintiff indicates that Benadryl also affects a person’s
ability to tolerate heat. Id.
Plaintiff alleges that his exposure to excessive heat conditions:
● exacerbates his mental illness issues by worsening his anxiety and depression;
Simmons v. Cannon, No. 6:08cv304, 2009 WL 1350812, at *2 (E.D. Tex. May 12, 2009).
2 Plaintiff indicates that McConnell Unit medical providers never tested him for H-Pylori and that he was not tested
for this infection until 2025 when he tested positive. (D.E. 1, p. 55).
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● increases his risk for insomnia;
● places stress on his heart because the body must increase its heart rate to
dissipate heat;
● causes extreme tachycardia, palpitations, and chest pains;
● causes shortness of breath, dizziness, lack of sweating, loss of coordination,
and an inability to calm down.
(D.E. 15, pp. 4-5).
4. Plaintiff’s Alleged Heat Restrictions
Plaintiff states that he was on the “medical heat restrictions list” in 2016, which means
that he was designated as having heat sensitivities. (D.E. 15, pp. 3, 21). According to
Plaintiff, this list is given to each TDCJ officer. Id. at 3. Because he was on this list,
Plaintiff says, prison officials were required to: (1) provide him with extra ice, cups, and
water; (2) offer respite, cool showers, and ensure Plaintiff had a fan; (3) conduct wellness
checks on him while he is on his cell; and (4) house a person on that “list in a reasonable
temperature environment.” Id. at 3-21.
At all relevant times during the summers of 2023 and 2024, Plaintiff was given the
following heat-related work restrictions: (1) no work in direct sunlight; (2) no humidity
extremes; and (3) no temperature extremes. Id. Because of his “no temperature extremes”
restriction, Plaintiff says, he was entitled to a first or second housing assignment during the
summer. Id. at 21.
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5. General Alleged Conditions at the McConnell Unit
Plaintiff states that he was transferred to the McConnell Unit in February 2022. Id. at
22. According to Plaintiff, most of the living and sleeping areas for McConnell Unit
residents are not climate controlled. Id. As such, Plaintiff says, these living and sleeping
areas become dangerous due to the hot and humid summer conditions. Id.
Plaintiff states that: (1) from the beginning of the summer in 2023 until August 2023,
he was assigned to Cell 56 in the 7 Building which was “on one row”; (2) from September 7,
2023 until the end of the 2023 summer, he was assigned to Cell 59 in the 7 Building which
was on the “two row”; and (3) from the beginning of the summer of 2024 until September
2024, he was assigned to cell 56 in Building 3 which was on the “one row.” (D.E. 15, p. 2).
Plaintiff explains that the cell assignments in Buildings 3 and 7 did not have air-conditioning
and had running tap water which was not cool. Id. According to Plaintiff, none of his cell
assignments in Buildings 3 and 7 were near a dayroom that was air-conditioned. Id.
Plaintiff states further that the nearest cool shower was on the first floor of Buildings 3 and 7.
Id. at 3.
Plaintiff states that he was assigned to a cell in the 12 Building from: (1) August 2023
until September 7, 2023 summer; and (2) from September 2024 until the end of the summer.
Id. at 2. Plaintiff’s cells in the 12 Building were air-conditioned and had running tap water
that was not cool. Id. Plaintiff indicates that the nearest dayrooms to his cells in the 12
Building also were air-conditioned. Id. With regard to all of his assigned cell locations in
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the summers of 2023 and 2024, Plaintiff states that the nearest air-conditioned respite was
located in either the 10 Building or 12 Building in 2023, the 12 Building in 2024, and the 3
Building beginning in July 2024. Id. at 3. All of these respite areas, Plaintiff says, were
located on the first floor. Id.
Plaintiff describes the summertime conditions as follows:
● it felt hotter and more humid inside the cells and dayrooms of each McConnell
Unit building than either outside or by the sergeant’s desk located next to the
door coming into the building;
● an inmate’s cell, or sleeping area, is “hotter” than the dayrooms;
● the cells—consisting of metal beds, concrete walls, and plastic-coated
mattresses—are hot because they trap heat during the day, stay heated into the
night;
● the excessive heat conditions at night make sleep very difficult;
● during the summer days, the cell are so hot that a rubber band left in the cell
locker in the morning would melt by 6:00 p.m.;
● cell windows are designed to not let air or a passing breeze come into the cell;
● due to short staffing in the summers of 2023 and 2024, the McConnell Unit
would often institute a lockdown;
● during the summer of 2023 during a dangerous heart wave, the McConnell
Unit was placed on three different lockdowns that lasted thirty days each time;
● during lockdowns, TDCJ inmates are confined to their cells for security
reasons;
● when confined in his cell, Plaintiff needed a “contraband water bottle” to get
ice-cold water from the cooler because cups did not fit underneath the cell
door;
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● McConnell Unit officer did not pass out cold water;
● cold water was not always available during a lockdown;
● significant delays occurred for ice to be transported from the kitchen area to
the inmate’s living area;
● ice water was not available at times when the cooler was removed to be
cleaned;
● ice water was not available at time during lockdown because the McConnell
Unit inmates were confined to their cells while the cooler was in the dayroom;
● even when ice water was available from the cooler, the water could be
contaminated and, therefore, not drinkable;
● Plaintiff was forced to share one cooler with 48 other residents;
● boil-water notices happened regularly even though the residents were never
told about the notices or the unsafe drinking water;
● water pressure issues happened often, causing discolored water to barely
discharge from the faucet;
● Plaintiff’s H-Pylori condition, he believes, was caused by the water issues at
the McConnell Unit;
● at times during the summers of 2023 and 2024, Plaintiff had not access to
water or cups;
● the McConnell Unit’s chow hall did not have cups in the summers of 2023 and
2024; and
● there “was never any additional ice water or cups” during the summer of 2023
and at time during the summer of 2024.
Id. at 22-25.
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Plaintiff alleges that he became sick and suffered symptoms of heat illness on
numerous occasions at the McConnell Unit, all the while being excluded from heat
mitigation measures outlined in AD-10.64. Id. at 29. As such, Plaintiff states that he began
documenting in a mini-green notebook instances when, where, and who denied him access to
respite, medical, and showers. Id. According to Plaintiff, correctional officers and ranking
officers did not wear name tags and refused to provide their names on request. Id. Plaintiff
asserts that his mini-green notebook was stolen in front of a security cameral as a retaliatory
act to destroy information and prevent Plaintiff from seeking justice and remedial measures
in this Court. Id.
6. Alleged issues in the McConnell Unit’s Law Library
Plaintiff alleges that, in 2023 and 2024, Law Librarian Thompson prohibited cups
from being brought into the law library. Id. at 26. According to Plaintiff, a large sign was
posted on the window of the law library in “big black bold letters” stating “No Cups.” Id.
Plaintiff states that this sign was posted in a high-trafficked walking area where wardens,
major, and captains traversed frequently when visiting the law library. Id.
Plaintiff alleges that inmates were not allowed to drink water or use the restroom
during their law library sessions, which generally lasted two to two-and-a-half hours. Id.
Plaintiff states that he could have a drink of water or use the bathroom by choosing to end his
law library session. Id. Plaintiff alleges further that, due to the ban on using the restroom, he
would not drink anything at least one hour before going to the law library so that he could
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continue his legal research. Id. Overall, Plaintiff explains he would have to go four to six
hours without having a drink. Id.
Plaintiff acknowledges that the McConnell Unit’s law library was air-conditioned at
all times. (D.E. 15, p. 12). As he visited the McConnell Unit’s law library regularly, he
complained about the ban on cups and drinking water to Law Librarian Thompson, Assistant
Warden Samaniego, Captain Herbst, and Captain Cavazos. (D.E. 1, p. 27).
7. Alleged issues Regarding Use of the McConnell Unit’s Showers
Plaintiff alleges that, during the summers of 2023 and 2024, a cool shower was not
always available to him at the McConnell Unit because: (21) only one shower was available
to about 48 people; and (2) during the hottest parts of the day, ten to fifteen people were
normally in line for a shower. Id. During lockdown, Plaintiff says, it took two to three hours
to get a short five-to-ten-minute shower so that someone else could get in for a shower. Id.
Plaintiff explains that obtaining access to showers became was difficult during lockdown or
due to short staffing. Id. Plaintiff alludes to situations where correctional officers would not
bother running cool showers while residents were locked in their cells, not even for inmates
with heat restrictions. Id. at 28.
Even if able to take a cool shower, Plaintiff describes that the excessive would soon
be debilitating after 30-45 minutes, whereby he would experience symptoms of heat illness.
Id. Overall, Plaintiff states that correctional officers would regularly deny him access to cool
showers. Id.
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8. Alleged Respite Placement in Small Cage
Plaintiff states that, on several occasions when allowed respite during the summer of
2023, he was placed in a small cage within an air-conditioned area in the 12 Building. (D.E.
1, p. 29; D.E. 15, p. 6). According to Plaintiff, the small cages were the size of phone
booths. (D.E. 15, p. 7).
Plaintiff alleges that he was forced to remain in this cage for hours without access to
water or a restroom. (D.E. 1, p. 29; D.E. 15, p. 6). Plaintiff asserts that the following
officials sent him to the small cage for respite: Sgt. J. Perez,3 Sgt. Ralphs, Sgt. R. Martinez,
Officer Chapa, and Major Masters (“Maj. Masters”). (D.E. 15, p. 6). Plaintiff contends that
these officials sent him to the small cage, which was inconsistent with his custody status, in
retaliation for filing complaints, ombudsman complaints, and grievances. (D.E. 1, p. 30;
D.E. 15, p. 7).
9. Alleged Incidents on June 4, 2023
Plaintiff claims that on June 4, 2023, he developed “sun blisters” on his head and arms
while outdoors for recreation. (D.E. 1, p. 30; D.E. 15, p. 7). He states that he “began
feeling the effects of the heat and became exhausted.” (D.E. 1, p. 30). Plaintiff alleges that
he did not ask to come inside because it was count time, meaning he would not have been
3 Plaintiff references Sgt. Perez as the older male sergeant. (D.E. 15, p. 6). He later clarifies in his More Definite
Statement that Sgt. Mr. Perez is the younger male sergeant. Id. at 30. The undersigned assumes therefore, that Plaintiff
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allowed to go inside. (D.E. 1, p. 30; D.E. 15, p. 7). Plaintiff indicates it took about four days
for the sun blisters to heal. (D.E. 15, p. 7).
Later that day, after recreation ended and during the evening meal, Plaintiff asserts
that the indoor heat conditions in the chow hall were “extremely hot” despite the presence of
fans which were blowing nothing but hot air. (D.E. 1, p. 30). After the evening meal, there
was a long line for one cool shower in Plaintiff’s building, the 7 Building. Id. Plaintiff
alleges that at about 5:45 p.m., Sgt. Martinez began placing inmates in their cells. Id. at 31.
Plaintiff took a hot shower rather than waiting for a cool shower, but then felt worse than
before, so he spoke with Sgt. Martinez and respectfully asked her if he could have a cold
shower or go to a respite area. Id. Plaintiff also explained to her that he started to feel ill
while at recreation earlier that afternoon, that he was suffering from heat exhaustion, and that
he was a heat-restricted inmate who had not had a chance to take a cool shower. Id. Sgt.
Martinez disregarded Plaintiff, effectively refusing his requests, and ordered him into his
cell. Id.
Later on June 4, 2023, Plaintiff posted a “need respite sign” outside his cell to notify
administrators and bystanding officials about what had happened to him. Id. Lt. Dougherty
passed by Plaintiff’s cell at around 7:15 p.m., and Plaintiff told him that he “was badly
sunblistered, heat sick with dizziness, fatigue, rapid heart rate[,] and cramps.” Id. Plaintiff
states that he explained to Lt. Dougherty that he was a heat-restricted inmate with heart
seeks to hold Sgt. J. Perez responsible for sending him to the small cages.
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problems. Id. According to Plaintiff, Lt. Dougherty offered no assistance. Id. Plaintiff
attached to his Complaint an affidavit executed by inmate Richard Shafer, who affirms that
Lt. Dougherty denied Plaintiff’s request for respite. (D.E. 1-1, p. 12). Plaintiff states that Lt.
Dougherty tore down Plaintiff’s “need respite” sign and confiscated it. (D.E. 1, p. 32). At
8:15 p.m. that day, Sgt. Hampson told Plaintiff that he would have to wait to be taken to
respite because the unit was short of staff. Id.
Plaintiff alleges that, in response to the events of June 4, 2023, his mother filed a
complaint with the ombudsman. Id. at 32. A subsequent investigation allegedly found that
the “paper” had been torn down from Plaintiff’s cell door (which Plaintiff asserts was his
“need respite” sign), and that Plaintiff had had a shower that evening (which Plaintiff asserts
was just a hot shower, not a cool one), but otherwise found no wrongdoing by any staff
member. Id. The investigation allegedly also found nothing to “believe that Plaintiff was
requesting respite or medical.” Id.
10. Alleged Incidents on June 16, 2023
Plaintiff complains that, on June 16, 2023, several unknown officers denied Plaintiff
respite and cool showers on three occasions from 5:56 p.m. until 9:37 p.m. Id. at 32.
Plaintiff also states that Sgt. Ralphs denied him unspecified measures under AD-10.64 and
tore down and confiscated his “need respite” sign. Id.
11. Alleged Incidents on June 18, 2023
Plaintiff alleges that, on June 18, 2023, he was denied respite and “appropriate
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medical screening” several times during the day. Id. at 33. He claims that medical attention
was denied by several unknown officers who refused to reveal their names to Plaintiff. Id.
At about 5:30 p.m., Plaintiff allegedly complained to officers of being heat sick and having
chest pain. Id. Plaintiff states that he informed these officers he was a heat-restricted inmate
and had heart problems. Id. Plaintiff requested the officers’ names, but they refused with
one stating that he would “write Plaintiff a case.” Id.
Around 5:40 p.m. that same day, Plaintiff allegedly sat down in front of the barber
shop in his housing building (the 7 Building), “scared, nauseated and, very weak.” Id. Sgt.
Martinez allegedly came to Plaintiff’s location and began yelling and screaming at Plaintiff,
accusing him of faking, acting like a child, and that he “was going back to [his] cell one way
or another.” Id. Plaintiff states that he told Sgt. Martinez that he was not faking it, that he
felt ill, that he had heart problems, and that he was a heat restricted inmate. Id.
Allegedly “[f]eeling sick, afraid and intimidated,” Plaintiff took the hand of an
unknown officer who was trying to help Plaintiff back to his cell, but Plaintiff fell to the
floor “extremely weak, nauseated and with a racing heart.” Id. Plaintiff alleges that he then
began to vomit and dry heave. Id. Sgt. Martinez responded by making fun of Plaintiff,
calling him a “faggot” and a “dumb ass,” insisting that Plaintiff was faking, and assuring
Plaintiff that he would be “getting a case.” Id. at 34. According to Plaintiff, Sgt. Martinez
also instructed another officer to step on and break Plaintiff’s eyeglasses. Id.
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At 6:00, nurses arrived from the infirmary and allegedly “began making fun of
Plaintiff along with Sgt. Martinez. Id. After Plaintiff was strapped to a gurney and
transported to the infirmary in the 10 Medical Building, a nurse accused Plaintiff of wasting
her time. Id. Plaintiff allegedly told the nurse that it was very hot and that he was ill and
suffering palpitations. Id. According to Plaintiff, his request for an EKG test was refused.
Id. Plaintiff states that his vital signs were checked, but not his temperature. Id.
Plaintiff claims that, after spending five minutes in the infirmary, he was released to
Lt. Bliedrey and Captain Herbst, who walked Plaintiff back to his “dangerously hot cell in
handcuffs and shackles.” Id. Plaintiff alleges he was still ill, suffering with extreme anxiety,
and was afraid. Id. He claims that he tried to ask for respite several times, but that both
Capt. Herbst and Lt. Bliedrey denied or ignored his requests. Id. Plaintiff claims he was
then forced into his “dangerously hot cell” at which point Capt. Herbst and Lt. Bliedrey
refused Plaintiff’s request to check temperature of his cell. Id. According to Plaintiff, the
heat index that day had reached 118 degrees. Id.
Later that evening, Plaintiff spoke with Sgt. Austin, who allegedly refused to call
medical or allow Plaintiff to go to a respite area or to medical, even though Plaintiff had
allegedly told him that he was a heat restricted inmate, that he had medical problems, and
that he was sick from the extreme heat. Id. at 35. At this time, Plaintiff claims that he was
throwing up and needed either medical or respite. Id. While ignoring Plaintiff’s requests,
Sgt. Austin allegedly tore down Plaintiff’s “need respite” signs and/or “need medic signs.”
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Id. Finally, at about midnight, Sgt. Austin allowed Plaintiff to leave his cell for a cool
shower. Id.
Lastly, on June 18, 2023, Plaintiff claims that first shift and second shift officers
allowed other inmates access to respite and cool showers but not Plaintiff. Id.
12. Alleged Incidents involving Sgt. Martinez after June 4, 2026
Plaintiff alleges that, in various incidents occurring after June 4, 2023, Sgt. Martinez:
(1) approached Plaintiff while Plaintiff was walking with another inmate and yelled “You
got a problem with me”; (2) yelled at Plaintiff whole he was “coming out of I-Pod … that
she was gonna make sure that Plaintiff stops lying on her name”; and (3) informed Plaintiff
that he could not get a hair cut because he liked to write grievances. Id. at 38. Plaintiff
alleges that Sgt. Martinez falsely wrote a disciplinary case against Plaintiff after the June 18,
2023 incident, but that the case was later overturned after Plaintiff was disciplined with cell
and commissary restrictions. Id. at 38-39. According to Plaintiff, Sgt. Martinez wrote this
case in response to a grievance filed by Plaintiff. Id. at 39.
13. Alleged Incidents on June 19, 2023
Plaintiff alleges that, on June 19, 2023, he was finally let out of his cell at 1:30 p.m.
and allowed to shower at 2:30 p.m. Id. After requesting help all days, Plaintiff states that he
was allowed to go to respite around 4:00 p.m. Id. At around 5:00 to 5:15 p.m., Plaintiff
allegedly spoke with Capt. Herbst about his issues with respite and medical access. Id.
Plaintiff also asked Capt. Herbst to preserve her body cam footage from the previous day.
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Id.
14. Alleged Incidents on June 20, 2023
Around noon the next day, June 20, 2023, while Plaintiff was being taken to medical
for an EKG, Sgt. J. Perez informed Plaintiff that he had been working at the McConnell Unit
for 18 years that, in the end, “he will win.” Id. at 35. Officer Sanchez allegedly ordered
Plaintiff not to speak about any other medical issue because Plaintiff was only there for an
EKG. Id. at 36. The EKG allegedly found that Plaintiff had tachycardia and that Plaintiff
had a heart rate of 102 beats per minute. Id.
While at the infirmary, Plaintiff sought to file an OPI/IPI because he was afraid due:
(1) to the denials of respite and medical; (2) the severity of the current heat wave; and (3)
retaliation and belittling by McConnell Unit officers. Id. Sgt. Ramirez initially responded to
the OPI/IPI, to which Plaintiff explained his complaints and possibility of filing a civil
action. Id. Plaintiff further explained to Maj. Masters everything he told Sgt. Ramirez. Id.
Maj. Masters told Plaintiff in front of Sgt. J. Perez and Officer Sanchez that Plaintiff’s
mother had already filed an ombudsman complaint against McConnell Unit staff, and that
Plaintiff therefore could not request an offender protection investigation. Id.
After leaving the infirmary, Plaintiff was sent to respite by Maj. Masters in the 12
Building. Id. at 37. Plaintiff alleges he was placed in a “phone boot sized holding cage that
was coated in pepper spray” with no access to water or the restroom. Id. According to
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Plaintiff, the 12 Building was Sgt. Ramirez’s work area, and she walked by complaining
about Plaintiff being there.
15. Alleged Incidents on June 24, 2023
Plaintiff alleges that, on June 24, 2023, he placed a “need respite” sign on his cell
door in the 7 Building and requested respite from Officer Liserio. Id. at 37. Officer Liserio
allegedly searched Plaintiff’s cell and confiscated Plaintiff’s papers around 3:10 p.m. Id.
Officer Liserio and Sgt. J. Perez, Plaintiff claims, refused to issue Plaintiff’s confiscation
papers, and Plaintiff never received his papers back. Id.
On June 24, 2023, Plaintiff was denied respite and medical screening by Sergeant
Martinez, Officer Chapa, a McConnell Unit nurse, and unknown officer. Id.
16. Alleged Incidents between June 25 and July 11, 2023
Plaintiff claims that, on June 26, 2026 at around 4:00 p.m., he placed another “need
respite/medical” sign outside his cell door in the 7 Building. Id. Plaintiff states that, at about
4:30 p.m., he informed the nurse in front of Officer Chapa that: (1) he had a bad headache, a
rapid heartbeat, and racing thought; (2) it was extremely hot in his cell; and (3) he was heat-
restricted inmate. Id. The nurse, Plaintiff says, responded to Plaintiff in front of Officer
Chapa “that it was securit[y’s] issues and not hers.” Id.
That same day, Officer Chapa and Sgt. Martinez denied Plaintiff access to medical
and respite all day while allowing other inmates unrestricted access to respite. Id. at 38.
Plaintiff alleges that other inmates told him that the respite area was not full that day. Id.
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Plaintiff explains that he was denied respite, medical, and cool showers often between June
25 and July 11, 2023, while other inmates were allowed these heat mitigation measures and
unrestricted access. Id.
17. Alleged Incidents on July 11 and 12, 2023
Plaintiff claims that, on July 11, 2023 at about 6:15 p.m., he received his property
back from an officer at the desk. Id. at 39. However, when he went through his returned
property, Plaintiff allegedly noticed that his mini-notebook was missing. Id. Plaintiff states
that his notebook was legal work product which “contained specific dates, times, events,
names, descriptions of [officers] and rank and other work product when Plaintiff was kicked
out of respite made to go to the [12] Building for respite while others were going to [the 10]
Building.” Id. Plaintiff states further that the notebook “contained notes of when Plaintiff
spoke with wardens, rank, and, when [officers] and rank threatened him, harassed him, and
refused their names. Id.
18. Alleged Incidents between July 14 and 27, 2023
Plaintiff alleges that the following incidents took place between July 14 and 27, 2023:
● July 14, 2023 – Plaintiff was denied respite all day by unknown officers who
refused to provide their names. Id. at 40.
● July 15, 2023 – Plaintiff spoke with Lt. Wilkens about the fact that no
wellness checks were being performed and that he was denied respite. Id.
● July 17, 2023 – Plaintiff alleges that he spoke with Capt. Cavazos around 4:30
p.m., asking him to rewind the security cameras so Plaintiff could get his mini
notebook containing the legal work product back. Id. According to Plaintiff,
Capt. Cavazos told Plaintiff to write a grievance. Id.
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● July 17, 2023 – Plaintiff was denied respite at 5:15 p.m. and 6:05 p.m. by a
female officer. Id. Plaintiff was then called to the 1 Building (which was air-
conditioned), where he spoke with Capt. Garcia about the denials of respite,
harassment, and retaliation. Id.
● July 19, 2023 – Plaintiff was denied respite by Sgt. J. Perez at about 5:30 p.m.
in the 7 Building, even though he explained to Sgt. J. Perez that he was
experiencing heat-related symptoms, such as rapid heart rate, dizziness,
fatigue, headache, shortness of breath. Id.
● July 22, 2023 – Plaintiff was sent to medical by Sgt. Jumenez at about 4:15
p.m. Id. When Plaintiff arrived at medical, Plaintiff says, Officer Sanchez
informed Plaintiff that he could not be seen at medical and that he was only
there for respite. Id. at 41. Plaintiff states that, at 4:40 p.m., Officer Sanchez
ordered Plaintiff to leave medical, refused to call rank for Plaintiff, and
threatened Plaintiff with a case. Id. After returning to his cell and informing
Sgt. Jumenez what happened, Plaintiff says, Sgt. Jumenez and three other
unknown officers ordered Plaintiff back to his “overly hot living area.” Id.
● July 23, 2023 – Plaintiff received another EKG. Id.
● July 24, 2023 – Despite being sick from the heat, Plaintiff was denied respite
all day. Id.
● July 25, 2023 – Despite being sick from the heat, Plaintiff was denied respite
all day. Id.
● July 27, 2023 – Sgt. J. Perez sent Plaintiff to medical. Id.
19. Alleged Incidents on July 30, 2023
Plaintiff alleges that, on July 30, 2023, he was allowed to go to the 10 Building for
respite but was ordered to leave around 6:15 p.m. Id. Because he was reluctant to leave
respite, Plaintiff requested rank. Id. According to Plaintiff, an unknown officer ordered
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Plaintiff to leave respite even though no additional inmates were showing up. Id. Plaintiff
alleges that the unknown officer then initiated an incident command system (“ICS”). Id.
Following the ICS initiation, at about 6:20 p.m., Sgt. Ramirez, Officer Sanchez, and
another unknown officer responded, at which time Plaintiff allegedly explained that he was a
heat-restricted inmate, that he was having problems in the heat, and that AD-10.64 allowed
inmates to stay in respite for as long as they wanted. Id. at 42. Plaintiff allegedly asked to
go either to another respite area or to medical and also requested the officers’ names. Id. All
of Plaintiff’s requests were allegedly denied. Id. That same day, Plaintiff informed Sgt.
Ramirez and the other officers present that he was filing a lawsuit and that it was okay if they
did not provide their names because Plaintiff already new Sgt. Ramirez’s name. Id.
20. Alleged Incidents in August 2023
Plaintiff alleges that on August 1, 2023:
● Counsel Substitute Gonzales brought a disciplinary case against Plaintiff;
● the case was fraudulently written by Sgt. Ramirez, stating that Plaintiff had
called her by her name and asked her what she likes to do for fun;
● Plaintiff was moved to the air-conditioned 12 Building because he had filed a
complaint against Capt. Cavazos.
● Counsel Substitute Gonzales served the disciplinary case on Plaintiff while he
was still housed in the 7 Building;
● Plaintiff requested to attend the disciplinary hearing, pled not guilty, and asked
to call witnesses; and
● Counsel Substitute Gonzales laughed at Plaintiff and then “threw the case on
Plaintiff”:
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Id. at 42.
Plaintiff asserts that, while housed in the 12 Building in August 2023, Officer Sanchez
denied him access to the dayroom and showers. Id. at 43.
Plaintiff alleges that, on August 22, 2023, Major Quiroga of the Unit Classification
Committee (“UCC”) informed Plaintiff that a disciplinary hearing had been held on August
18, 2023. Id. Plaintiff alleges that he never had an opportunity to attend this hearing, argue
in his favor, or present evidence. Id. Major Quiroga changed Plaintiff’s custody status to G4
housing, which is more restrictive. Id.
21. Alleged Incidents in September 2023
Plaintiff alleges that the following incidents occurred in September 2023:
● September 7, 2023 – Plaintiff allegedly was moved from air-conditioned
housing in the 12 Building to a non-climate-controlled environment in the 7
Building. Sgt. Austin denied Plaintiff respite, despite the fact that the day fell
during a deadly and brutal heat wave and it was his first day for Plaintiff in the
heat in over a month. Id. at 43.
● September 7 through 17, 2023 – Plaintiff was denied respite and cool showers
everyday except twice when Lt. Dougherty allowed a cool shower on July 13,
2023 at 7:15 p.m. and Officer Tan allowed a cool shower on another date. Id.
Plaintiff was denied respite by unknown officers, Officer Reeves, Lt.
Dougherty, and Sgt. Austin. Id. at 44.
● September 18, 2023 – Plaintiff was denied respite and medical screening by
Officer Liserio at 5:15 p.m. Id.
● September 19, 2023 – Plaintiff was denied respite and a cool shower by
Officer Liserio and an unknown officer at 4:49 p.m. and 7:27 p.m. Id.
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● September 20, 2023 – Plaintiff was denied respite and a cool shower at 8:45
p.m. and 9:58 p.m. by an unknown sergeant. Id.
● September 21, 2023 – Plaintiff was denied respite and a cool shower at 6:00
p.m. by Officer (or sergeant) Raone,4 despite the fact that Plaintiff showed
Officer Raone his heat restrictions at this time. Id.
● Plaintiff was never able to acclimate to the heat when placed back into it on
September 7, 2023. Id. While the unit was locked down everyday in
September 2023, Plaintiff suffered symptoms of heat illness, including
dizziness, fatigue, and rapid heart rate even when able to take a cool shower
and forced back into a hot cell. Id.
● McConnell Unit officers never asked Plaintiff if he felt well, needed respite, or
needed a cool shower. Id. at 45. No officers ever conducted wellness checks
as mandated by AD-10.64 during the summer of 2023. Id.
22. General Allegations Leading to the 2024 Summer
Plaintiff alleges that the McConnell Unit continued to be short staffed through 2024.
Id. In February 2024, Plaintiff’s custodial classification improved from G4 to G2, and he
was moved to the 3 Building. Id. According to Plaintiff, hot and humid weather arrived
early in 2024. Id. Plaintiff was allegedly denied respite on May 4, 2024 by Sgt. Ms. Perez at
4:00 p.m. and by Officer Lopez at 7:55 p.m. Id.
23. Alleged Incidents on May 20, 2024
Plaintiff alleges that, on May 20, 2024, it was hot and humid. Id. at 46. At 12:50
p.m., Plaintiff says, he informed Officers Ragel and Haso that he was a heat-restricted inmate
and that he was suffering with symptoms of heat illness. Id. Plaintiff states that his request
4 Plaintiff initially lists this defendant as Officer Raone. (D.E. 1, p. 7). However, with respect to his September 21,
2023 allegations, Plaintiff refers to “Sgt. Raone.” Id. at 44.
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for respite was denied, presumably by Officers Rangel and Haso. Id. In addition, his request
to see rank allegedly was denied. Id.
At about 1:20 p.m., Plaintiff waived a “need respite” sign outside of 3 Building cell
door. Id. According to Plaintiff, Officer Rangel arrived at Plaintiff’s cell door and denied
Plaintiff’s request for respite and a cool shower. Id. Later that day at 4:00 p.m., Plaintiff
indicates that he was let out of his cell for chow and that the cool shower was occupied. Id.
At 4:45 p.m., Plaintiff and another inmate requested passed to go to respite but were
ultimately denied passes by an unknown officer. Id.
At about 5:15 p.m., Capt. Frank Wofford indicated he would assist Plaintiff and the
other inmate in getting passes to respite. Id. At 5:20 p.m., Plaintiff entered the 10 Building’s
respite area but was told ten minutes later by an unknown officer to leave respite. Id. at 47.
According to Plaintiff, this officer refused to provide Plaintiff with her name but indicated
that rank has told her to close respite. Id. After leaving the 10 Building respite area,
Plaintiff informed an unknown captain at 5:35 p.m. that he was trying to get respite all day,
that he only was allowed respite for 10 minutes, and that he was having symptoms of heat
illness and was heat restricted. Id. According to Plaintiff, the unknown captain explained
that Warden Amonett had closed respite due to a pending lockdown. Id. Finally, after
arriving back at his housing area in the 3 Building, Plaintiff states that he took a five-minute
cool shower before being forced into his overly hot and humid cell, where hie continued to
experience symptoms of heat illness. Id.
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24. Alleged Incidents between May 22 and May 28, 2024
Plaintiff asserts that, on May 22, 2024, Plaintiff explained his issues getting respite
with Capt. Cavazos. Id. At 2:00 p.m., Plaintiff allegedly began having symptoms of heat
illness. Id. At 5:15 p.m., Plaintiff indicates that he was allowed to be evaluated by medical.
Id. The unknown boss at the 3 Building desk allegedly refused to write Plaintiff a respite
pass, and Plaintiff was ordered by someone back into his cell while being denied respite. Id.
Plaintiff states that, on May 24, 2024, he had access to the 10 Building’s respite area
are from 3:00 p.m. to 5:00 p.m., but that water was denied to him. Id. at 48. On May 30,
2024, Officer Oki allegedly ordered Plaintiff to leave respite in the 10 Building and return to
his cell. (D.E. 1, p. 48; D.E. 1-1, pp. 23-24). According to Plaintiff, a false disciplinary case
was brought against Plaintiff for refusing to leave respite. (D.E. 1, p. 48). This case was
dismissed later, Plaintiff says. (D.E. 1, p. 48; D.E. 1-1, pp. 23-24).
Plaintiff has attached clinical notes to his complaint, indicating that he visited medical
on May 28, 2024 where he complained of having headaches, difficulty breathing, chest pain,
hallucinations, and inability to sleep due to the heat. (D.E. 1-2, p. 6). Plaintiff further
complained about security failing to take him to respite. Id. Plaintiff reported that he was
drinking a lot of water but not feeling better. Id. Dr. Isaac Kwarteng noted that Plaintiff was
“intolerant to the heat and that Plaintiff’s EKG results showed no cardiac injury. Id. Dr.
Kwarteng encouraged Plaintiff to go to respite as needed and to take fluids. Id.
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25. Alleged Incidents in June 2024
Plaintiff alleges that the following incidents occurred in June 2024:
● June 3, 2024 – After Plaintiff spent 15 minutes in the 10 Building respite,
Officer Oki allegedly ordered Plaintiff and all other inmates in respite to leave
because Officer Oki initiated an ICS. (D.E. 1, p. 48). After kicking Plaintiff
out of respite, Plaintiff requested her name and informed her that a grievance
would be brought against her. (D.E. 15, p. 22). Officer Oki then brought a
false disciplinary case against Plaintiff. Id.
● June 3, 2024 – Sgt. Mr. Perez, Officer Unknown, unknown officers, and an
unknown sergeant ordered Plaintiff and other inmates to leave respite. (D.E.
1, p. 48). According to Plaintiff, Sgt. Mr. Perez did not know why the order
was given but refused to intervene. Id. Sgt. Mr. Perez also allegedly refused
to allow Plaintiff to go to another respite area and ordered Plaintiff to return to
his cell. Id.
● June 4, 2024 – Sgt. Gallaway and another officer allegedly denied Plaintiff
respite. Id.
● June 5, 2024 – Sgt. Gallaway, Officer Contrerrez, and an unknown officer
allegedly denied Plaintiff respite. Id.
● June 6, 2024 – Sgt. Gallaway allegedly denied Plaintiff respite. Id.
● Nurse Practitioner (“NP”) Goyel saw Plaintiff in medical for complaints that
the heat was making him fatigued, that he was unable to sleep, and that he
suffered from headaches and anorexia. (D.E. 1-2, p. 4). Plaintiff also reported
that he was not given enough respite or cold showers to help with the
excessive heat. Id. NP Goyel prescribed medication for headache syndrome
and advised Plaintiff to keep hydrated at al times and to continue with respite
and cold showers. Id. NP Goyel further explained that cell placement falls
within TDCJ’s discretion. Id.
● June 12, 2024 – Officer Lopez and an unknown officer allegedly denied
Plaintiff respite. (D.E. 1, p. 49).
● June 15, 2024 – Officer Lopez and an unknown officer allegedly denied
Plaintiff respite. Id.
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● June 28, 2024 – At about 11:30 a.m., Officer Alonzo allegedly opened
Plaintiff’s cell door and informed Plaintiff that medical was calling for him.
Id. However, after Plaintiff got ready to go, Plaintiff states that Officer
Alonzo slammed the cell door and left. Id.
● June 28, 2024 – Plaintiff states that: (1) Officer Alonso denied him respite at
1:00 p.m.; and (2) Officer De La Cruz denied him respite at 2:55 p.m. Id.
● June 29, 2024 – Plaintiff states that: (1) Capt. Wilkens denied him respite at
8:50 p.m.; (2) an unknown officer denied him respite at 9:10 p.m. and 9:20
p.m.; (3) Officer Ms. Perez denied him respite at 10:25 p.m.; and (4) Officer
De La Cruz denied him respite at 11:50 p.m. Id.
● June 30, 2024 – Plaintiff states that: (1) Officer Florez denied him respite at
12:00 p.m.; (2) an unknown officer denied him respite at 2:00 p.m.; and (3) an
unknown officer denied him respite at 9:25 p.m. Id.
● June 28 to 30, 2024 – Plaintiff states he was confined to his cell all three days
and was “experiencing severe symptoms of heat illness and mental health
problems” with no help available. Id.
26. Alleged Incidents in July 2024
Plaintiff alleges that the following incidents occurred in July 2024:
● July 7, 2024 – Plaintiff allegedly was denied respite by Sgt. Montavius. Id.
● July 14, 2024 – Plaintiff was denied respite at 2:30 p.m. and 6:00 p.m. Id. at
50.
● July 16, 2024 – Plaintiff states that the dayroom temperature was 101 degrees
in the 3 Building and that the temperature in cell 52 was 105 degrees. Id.
According to Plaintiff, another inmate housed in cell 53 passed out. Id.
● July 21, 2024 – Plaintiff states that he was denied respite at 1:15 p.m. by an
unknown officer, cryptically referred to as “Carbov.” Id. Plaintiff, after
making it to the 3 Building respite after 2:00 p.m., was allegedly kicked out of
the respite by “Carbov.” Id. According to Plaintiff, he made it back to respite
on the second shift. Id.
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● July 23, 2024 – At 1:15 p.m., Plaintiff allegedly spoke with Assistant Warden
Samaniego about his issues with accessing respite and medical. Id.
● July 23, 2024 – Plaintiff allegedly was denied respite at 3:10 p.m. and for the
rest of the day. Id.
● July 24, 2024 – Plaintiff spoke with Sgt. Brako about threats from officers. Id.
● July 25, 2024 – Plaintiff spoke with Maj. Guardiola about threats and
problems with respite. Id. at 51.
27. Alleged Incidents in August 2024
Plaintiff alleges that the following incidents occurred in August 2024:
● August 1, 2024 – Plaintiff states that: (1) he was denied respite by an unknown
officer at 2:15 p.m.; and (2) he was denied respite sometime later by Sgt.
Alanis. Id. Plaintiff indicates that he was allowed to go to respite at 5:30
p.m. Id.
● August 8, 2024 – Plaintiff alleges that, as he was entering the 3 Building’s
respite area at 6:00 p.m., his skin began to burn because gas had been sprayed.
Id. Sgt. Tiamiyu denied Plaintiff’s request to go to another respite area and
instructed Plaintiff to go outside. Id. Plaintiff explains that, after waiting
outside for 45 minutes, he went back inside and requested to be seen by
medical for symptoms of heat illness and rapid heart rate. Id. According to
Plaintiff, an officer told Plaintiff either to return to his cell or go into the
“peppersprayed multi purpose room.” Id. The officers, Plaintiff says, refused
his request for their names and rank and instead responded they would write
Plaintiff up. Id. Plaintiff states that he sat against the wall and told the officer
and sergeant to call an ICS. Id. at 52. After ten minutes, Plaintiff requested
medical again, and the sergeant told him to go. Id. Plaintiff states that he
arrived at medical at 7:15 p.m. and returned to his cell at 8:00 p.m. Id.
Plaintiff subsequently requested the names of Sgt. Tiamiyu and other officials
and informed Sgt. Tiamiyu that a grievance would be brought against him.
(D.E. 15, p. 22). Sgt. Tiamiyu then informed Plaintiff that he would file a
disciplinary case against Plaintiff because Plaintiff was filing a grievance
against him. Id. Sgt. Tiamiyu and Officer Gbrrjh then brought a false
disciplinary case against Plaintiff. (D.E. 1-1, p. 20; D.E. 15, p. 22).
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● August 20, 2024 – Plaintiff was found not guilty at the disciplinary hearing
regarding the case he received on August 8, 2024 of failing to obey an order
given by Officer Gbrrjh to leave the hallway. (D.E. 1, p. 52; D.E. 1-1, p. 20).
● Plaintiff acknowledges he had an easier time getting to the respite area in the 3
Building in August 2024, especially at dinner time. (D.E. 1, p. 52).
28. Alleged Incidents in September 2024
Plaintiff alleges that the following incidents occurred in September 2024:
● September 3, 2024 – Unknown “officers and rank” brought a false disciplinary
case against Plaintiff. Id.
● September 3, 2024 – An unknown officer allegedly told Plaintiff that he would
be moving to another cell in the 3 Building. Id. Plaintiff states that he
informed Officer Melchor and Officer Gbrrjh that he was in danger in the
living area and needed to file an OPI/IPI. Id. Officer Melchor, Plaintiff says,
ordered Plaintiff to go into the multi-purpose room. Id. at 53. Plaintiff
explains he was called out of the room to speak with Capt. Cavazos on the
phone, whereby Plaintiff expresses his concerns about his safety to Capt.
Cavazos. Id. Later that day, according to Plaintiff, Sgt. Ralphs took Officer
Melchor’s place and Capt. Wofford took Capt. Cavazos’s place. Id.
● September 4, 2024 – Plaintiff alleges that, at 12:15 a.m., he was escorted from
the 3 Building to the 12 Building by Sgt. Ralphs and locked in a phone booth-
sized cage for about seven hours with no access to a restroom or water.
Nevertheless, Plaintiff alleges that at 2:00 a.m. or 3:00 a.m.—only a couple of
hours after being escorted to the 12 Building—he received some water. Id.
According to Plaintiff, neither Officer Melchor, Capt. Cavazos, nor Sgt.
Ralphs “informed Plaintiff that he was not OPI/IPI status and that his failure to
move into [Cell 42] would result in a case.” Id.
● September 5, 2024 – Plaintiff alleges he was placed in pre-hearing detention.
Id.
● September 10, 2024 – Plaintiff was served a major case for allegedly failing to
move into Cell 42 in the 3 Building. Id.
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● September 11, 2024 – Plaintiff alleges that the this “false major case” was
dismissed because his allegations were substantiated. Id. at 54.
29. Allegations related to Plaintiff’s ADA/RA Claims
Plaintiff has been placed on the Heat Restriction List at all relevant times. (D.E. 1, p.
62). According to Plaintiff, Regional Director Holmes, Warden Amonett, Assistant Warden
Samaniego, Assistant Warden Flannell, other ranking officers, and other correctional officers
knew through their training that Plaintiff was susceptible to excessive heat. Id. at 63.
Plaintiff indicates that his various medical and mental health conditions have resulted in
disabilities that “restrict his ability to thermoregulate properly, engage in work, exercise,
sleep, communicate, be social, and the ability to live a normal life.” Id.
Plaintiff affirms that the excessive heat conditions are more dangerous to him and that
the conditions cause him to suffer “palpitations, tachycardia, bradycardia, chest pains,
difficulty breathing[,]” hallucinations, anxiety, depression, and difficulty sleeping in a hot
environment ” Id. at 63-64. Plaintiff asserts that his heat intolerance is open, obvious, and
apparent, especially as reflected by him being on the Heat Restriction List. Id. at 64.
As detailed above, Plaintiff states that Defendants have failed to provide him with
appropriate heat mitigation measures under AD-10.64, including not having appropriate
staffing levels as well as failing to provide cups, ice water, respite, cool showers, medical
screening, and wellness checks. (D.E. 15, p. 27). Plaintiff further states that AD-10.64 is
known by Defendants “to be ineffective in preventing heat illness and stroke even for a
healthy individual.” Id.
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Plaintiff explains that, throughout the 2023 and 2024 summers, he requested “cool
bed housing” as well as a pass from “medical and mental health” not to be denied respite, ice
water, cool showers, and medical screenings. (D.E. 1, p. 64; D.E. 15, p. 28). Between June
and August 2023, Plaintiff explained his disabilities to Assistant Warden Samaniego,
Assistant Warden Flannell, Major Masters, Capt. Cavazos, and Captain Herbst and requested
from then “cool bed housing or a pass.” (D.E. 15, p. 28). Plaintiff further explained to these
officials that he was being denied respite and other remedial measures under AD-10.64. Id.
Plaintiff states that: (1) he wrote an I-60 to Regional Director Holmes, Warden Amonett,
Assistant Warden Flannell, and Law Librarian Thompson throughout the summers of 2023
and 2024, with regard to effect of the excessive heat on his disabilities and limitations; and
(2) he wrote grievances throughout the summer of 2023 and 2024, where he explained his
disabilities complained about being denied heat mitigation measures under AD-10.64, and
requested cool bed housing. (D.E. 1, p. 65; D.E. 15, p. 28).
B. Plaintiff’s Construed Legal Claims
Based on his statements in his Amended Complaint (D.E. 1) and More Definite
Statement (D.E. 15), and based also on the Court’s liberal construction of his claims,
Plaintiff asserts that Defendants have violated his constitutional rights in several respects.
He further claims violations of the Americans With Disabilities Act, 42 U.S.C. §
12112(b)(5)(A), and the Rehabilitation Act, 29 U.S.C. § 794. Liberally construed, the
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undersigned understands Plaintiff’s claims in this action against each of the named
defendants to be the following:
● Former Executive Director Collier (sued in both his individual and official
capacities):
o violated Plaintiff’s Eighth Amendment rights by failing to provide sufficient
staffing during the summers of 2023 and 2024 (D.E. 1, p. 57; D.E. 15, p. 7);
o violated Plaintiff’s Eighth Amendment rights by instituting an ineffective heat
mitigation policy, AD-10.64 (D.E. 1, p. 57; D.E. 15, p. 8);
o violated Plaintiff’s Eighth Amendment rights by intentionally enforcing a 24/7
building schedule that forced him to sleep in excessively hot and dangerous
environment from the summer of 2023 through the present (D.E. 1, p. 58; D.E.
15, pp. 13-14).
● Regional Director Holmes (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights by failing to provide sufficient
staffing during the summers of 2023 and 2024 (D.E. 1, p. 57; D.E. 15 , p. 7-9);
o violated Plaintiff’s Eighth Amendment rights by allowing subordinate officers
to deviate from the policies set forth in AD-10-64 (D.E. 1, p. 57; D.E. 15, p.
8);
● Warden Amonett (sued in both his individual and official capacities)
o violated Plaintiff’s Eighth Amendment rights by failing to provide sufficient
staffing during the summers of 2023 and 2024 (D.E. 1, p. 57; D.E. 15 , pp. 7-
9);
o violated Plaintiff’s Eighth Amendment rights by allowing subordinate officers
to deviate from the policies set forth in AD-10-64 (D.E. 1, p. 57; D.E. 15, p.
8);
o violated Plaintiff’s Eighth Amendment rights by failing to provide subordinate
officials proper supervision and training to provide various heat mitigation
measures set forth in AD-10.64 (D.E. 1, p. 57; D.E. 15, pp. 9-10);
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○ violated Plaintiff’s Eighth Amendment rights by failing to provide Plaintiff
with access to cups and water while Plaintiff was conducting legal research at
the law library (D.E. 1, p. 57; D.E. 15, p. 12);
o violated Plaintiff’s First Amendment rights when he denied Plaintiff water to
drink and a cup during dangerous heat conditions in retaliation for Plaintiff
exercising his right to petition the government (D.E. 1, p. 58; D.E. 15, p. 15);
o violated Plaintiff’s First Amendment rights by refusing to prevent subordinate
officials from committing retaliatory acts against Plaintiff (D.E. 1, p. 60; D.E.
15, p. 24);
● Assistant Warden Samaniego (sued in both his individual and official
capacities):
o violated Plaintiff’s Eighth Amendment rights by failing to provide sufficient
staffing during the summers of 2023 and 2024 (D.E. 1, p. 57; D.E. 15 , p. 7-9);
o violated Plaintiff’s Eighth Amendment rights by allowing subordinate officers
to deviate from the policies set forth in AD-10-64 (D.E. 1, p. 57; D.E. 15, p.
8);
o violated Plaintiff’s Eighth Amendment rights by failing to provide subordinate
officials proper supervision and training to provide various heat mitigation
measures set forth in AD-10.64 (D.E. 1, p. 57; D.E. 15, pp. 9-10);
o violated Plaintiff’s Eighth Amendment rights by failing to provide Plaintiff
with access to cups and water while Plaintiff was conducting legal research at
the law library (D.E. 1, p. 57; D.E. 15, p. 12);
o violated Plaintiff’s First Amendment right when he denied Plaintiff water to
drink and a cup during dangerous heat conditions in retaliation for Plaintiff
exercising his right to petition the government (D.E. 1, p. 58; D.E. 15, p. 15);
o violated Plaintiff’s First Amendment rights by refusing to prevent subordinate
officials from committing retaliatory acts against Plaintiff (D.E. 1, p. 60; D.E.
15, p. 24);
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● Assistant Warden Flannell (sued in both her individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights by failing to provide sufficient
staffing during the summers of 2023 and 2024 (D.E. 1, p. 57; D.E. 15 , pp. 7-
9);
o violated Plaintiff’s Eighth Amendment rights by allowing subordinate officers
to deviate from the policies set forth in AD-10-64 (D.E. 1, p. 57; D.E. 15, p.
8);
o violated Plaintiff’s Eighth Amendment rights by failing to provide subordinate
officials proper supervision and training to provide various heat mitigation
measures set forth in AD-10.64 (D.E. 1, p. 57; D.E. 15, pp. 9-10);
o violated Plaintiff’s Eighth Amendment rights by failing to provide Plaintiff
with access to cups and water while Plaintiff was conducting legal research at
the law library (D.E. 1, p. 57; D.E. 15, p. 12);
o violated Plaintiff’s First Amendment rights when she denied Plaintiff water to
drink and a cup during dangerous heat conditions in retaliation for Plaintiff
exercising his right to petition the government (D.E. 1, p. 58; D.E. 15, p. 15);
o violated Plaintiff’s First Amendment rights by refusing to prevent subordinate
officials from committing retaliatory acts against Plaintiff (D.E. 1, p. 60; D.E.
15, p. 24);
● Maj. Masters (sued in both his individual and official capacities):5
o violated Plaintiff’s Eighth Amendment rights by sending Plaintiff to a small
cage for respite on several occasions in June and July of 2023 (D.E. 15, p. 6);
o violated Plaintiff’s First Amendment rights by sending Plaintiff to a small cage
for respite on several occasions in June and July of 2023 in retaliation for
Plaintiff filing grievances, ombudsman complaints, or lawsuits (D.E. 15, pp. 6-
7).
5 Plaintiff did not name Maj. Masters as a defendants in his complaint. It is clear that Plaintiff seeks to raise claims
against him. As such, by separate order, the undersigned will direct the Clerk to add Maj. Masters as a defendant in this
case.
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● Capt. Cavazos (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights by failing to provide subordinate
officials proper supervision and training to provide various heat mitigation
measures set forth in AD-10.64 (D.E. 1, p. 57; D.E. 15, pp. 9-10);
o violated Plaintiff’s Eighth Amendment rights by failing to provide Plaintiff
with access to cups and water while Plaintiff was conducting legal research at
the law library (D.E. 1, p. 57; D.E. 15, p. 12);
o violated Plaintiff’s First Amendment rights when she denied Plaintiff water to
drink and a cup during dangerous heat conditions in retaliation for Plaintiff
exercising his right to petition the government (D.E. 1, p. 58; D.E. 15, p. 15);
o violated Plaintiff’s First Amendment rights by writing a false disciplinary case
against Plaintiff on September 3, 2024 in retaliation for his complaints against
him (D.E. 1, p. 60, D.E. 15, p. 23);
● Capt. Herbst (sued in both her individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights by failing to provide subordinate
officials proper supervision and training to provide various heat mitigation
measures set forth in AD-10.64 (D.E. 1, p. 57; D.E. 15, pp. 9-10);
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Capt. Wilkens (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights by failing to provide subordinate
officials proper supervision and training to provide various heat mitigation
measures set forth in AD-10.64 (D.E. 1, p. 57; D.E. 15, pp. 9-10);
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o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Lt. Bliedrey (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Lt. Dougherty (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment right to freedom of expression by tearing
down Plaintiff’s “need respite” sign and/or “need medic” sign on June 4, 2023
(D.E. 1, p. 58; D.E. 15, p. 14);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Sgt. Martinez (sued in both her individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
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o violated Plaintiff’s Eighth Amendment rights by sending Plaintiff to a small
cage for respite on several occasions in June and July of 2023 (D.E. 1, p. 29;
D.E. 15, p. 6).
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, pp. 58-59; D.E. 15, pp. 15-18);
o violated Plaintiff’s First Amendment rights by sending Plaintiff to a small cage
for respite on several occasions in June and July of 2023 in retaliation for
Plaintiff filing grievances, ombudsman complaints, or lawsuits (D.E. 15, pp. 6-
7).
o violated Plaintiff’s First Amendment rights by writing a false disciplinary case
against Plaintiff in the summer of 2023 in retaliation for Plaintiff writing
grievances (D.E. 1, p. 59; D.E. 15, pp. 18-19);
o violated Plaintiff’s First Amendment rights by denying him a haircut on one
occasion and destroying his eyeglasses in retaliation for Plaintiff writing
grievances (D.E. 1, p. 59; D.E. 15, pp. 18-19);
● Sgt. Ralphs (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s Eighth Amendment rights by sending Plaintiff to a small
cage for respite on several occasions in the summer of 2023 and /or September
4, 2024 (D.E. 1, pp. 29, 53; D.E. 15, p. 6).
o violated Plaintiff’s First Amendment right to freedom of expression by tearing
down Plaintiff’s “need respite” sign and/or “need medic” sign on June 16,
2023 (D.E. 1, p. 58; D.E. 15, p. 14);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18).
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o violated Plaintiff’s First Amendment rights by sending Plaintiff to a small cage
for respite on several occasions in the summer of 2023 and/or on September 4,
2024 June and July of 2023 in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 53; D.E. 15, pp. 6-7).
o violated Plaintiff’s First Amendment rights by writing a false disciplinary case
against Plaintiff on September 3, 2024 in retaliation for his complaints against
him (D.E. 1, p. 60, D.E. 15, p. 23);
● Sgt. J. Perez (sued in both his individual and official capacities):
○ violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s Eighth Amendment rights by sending Plaintiff to a small
cage for respite on several occasions in June and July of 2023 (D.E. 1, p. 29;
D.E. 15, p. 6).
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
o violated Plaintiff’s First Amendment rights by sending Plaintiff to a small cage
for respite on several occasions in June and July of 2023 in retaliation for
Plaintiff filing grievances, ombudsman complaints, or lawsuits (D.E. 15, pp. 6-
7).
● Sgt. Austin (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment right to freedom of expression by tearing
down Plaintiff’s “need respite” sign and/or “need medic” sign on June 18 and
20, 2023 (D.E. 1, p. 58; D.E. 15, p. 14);
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o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Sgt. Ramirez (sued in both her individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
o violated Plaintiff’s First Amendment rights by placing Plaintiff in a small
respite cage on June 20, 2023 and writing a false disciplinary case against
Plaintiff on July 30, 2023 in retaliation for his complaints against her about
staying in respite (D.E. 1, pp. 59-60, D.E. 15, pp. 21, 24);
● Sgt. Hampson (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Liserio (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Sgt. Ms. Perez (sued in both her individual and official capacities):
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o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Sgt. Tiamiyu (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
o violated Plaintiff’s First Amendment rights by writing a false disciplinary case
against Plaintiff on August 8, 2024 in retaliation for his complaints against
him as to respite and medical (D.E. 1, p. 60, D.E. 15, p. 22);
● Sgt. Gallaway (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Sgt. Montavius (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
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o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Sgt. Mr. Perez (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Chapa (sued in both her individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s Eighth Amendment rights by sending Plaintiff to a small
cage for respite on several occasions in June and July of 2023 (D.E. 1, p. 29;
D.E. 15, p. 6).
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
o violated Plaintiff’s First Amendment rights by sending Plaintiff to a small cage
for respite on several occasions in June and Julu of 2023 in retaliation for
Plaintiff filing grievances, ombudsman complaints, or lawsuits (D.E. 15, pp. 6-
7).
● Officer Sanchez (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
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o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Raone (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Oki (sued in both her individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
o violated Plaintiff’s First Amendment rights on May 30 and June 3, 2024 by
writing a false disciplinary case against Plaintiff in retaliation for his
complaints against her about staying in respite (D.E. 1, p. 59, D.E. 15, p. 22);
● Officer Contrerrez (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Alonso (sued in both his individual and official capacities):
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o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Lopez (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer De La Cruz (sued in both his individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Ms. Perez (sued in both her individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Florez (sued in both his individual and official capacities):
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o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
● Officer Gbrrjh (sued in both his individual and official capacities):
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
o violated Plaintiff’s First Amendment rights by writing a false disciplinary case
against Plaintiff on August 8, 2024 in retaliation for his complaints against
him as to respite and medical (D.E. 1, p. 60, D.E. 15, p. 22);
● Officer Melchor (sued in both his individual and official capacities):
violated Plaintiff’s First Amendment rights by writing a false disciplinary case
against Plaintiff on September 3, 2024 in retaliation for his complaints against
him (D.E. 1, p. 60, D.E. 15, p. 23);
● Counsel Substitute Gonzales (sued in both her individual and official
capacities):
o violated Plaintiff’s Fourteenth Amendment due process rights when she denied
Plaintiff the ability to attend a disciplinary hearing, notify Plaintiff of a
disciplinary hearing, intentionally deprived him of the ability to present a
defense at the hearing; and denied him substitute counsel (D.E. 1, p. 61; D.E.
15, pp. 24-26);
● Officer Rangel (sued in both his individual and official capacities):6
6 Plaintiff did not name Officer Rangel as a defendant in his complaint. It is clear that Plaintiff seeks to raise claims
against him. As such, by separate order, the undersigned will direct the Clerk to add Officer Rangel as a defendant in
this case.
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o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 46);
● Officer Haso (sued in both his individual and official capacities):7
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 46);
● Unknown rank and/or classification officers (sued in both their individual and
official capacities):
o violated Plaintiff’s Eighth Amendment rights with respect to incidents
occurring in 2023 and/or 2024 when Plaintiff was denied certain heat-
mitigations measures (D.E. 1, p. 57; D.E. 15, p. 11);
o violated Plaintiff’s First Amendment rights when they denied Plaintiff water to
drink and a cup during dangerous heat conditions in retaliation for Plaintiff
exercising his right to petition the government (D.E. 1,p. 58; D.E. 15, p. 15);
o violated Plaintiff’s First Amendment rights by denying Plaintiff either respite,
medical, or a cool shower in retaliation for Plaintiff filing grievances,
ombudsman complaints, or lawsuits (D.E. 1, p. 58; D.E. 15, pp. 15-18);
o violated Plaintiff’s First Amendment rights by sending Plaintiff to a small cage
for respite on several occasions in June and July of 2023 in retaliation for
Plaintiff filing grievances, ombudsman complaints, or lawsuits (D.E. 15, pp. 6-
7);
o violated Plaintiff’s First Amendment rights by confiscating and destroying
Plaintiff’s legal work product written in a notebook in retaliation for Plaintiff
filing complaints and documenting illegal conduct (D.E. 1, p. 59; D.E. 15, pp.
19-20);
7 Plaintiff did not name Officer Haso as a defendant in his complaint. It is clear that Plaintiff seeks to raise claims
against him. As such, by separate order, the undersigned will direct the Clerk to add Officer Haso as a defendant in this
case.
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o violated Plaintiff’s First Amendment right to access the court when they
confiscated and destroyed Plaintiff’s legal work product written into his
notebook (D.E. 1, p. 59; D.E. 15, pp. 20);
o violated Plaintiff’s Fourteenth Amendment due process rights by holding a
disciplinary hearing on August 8, 2023 without Plaintiff’s knowledge, without
the opportunity to attend the hearing, without the ability to present a defense
and calling witnesses, and without providing a written disposition (D.E. 1, p.
62; D.E. 15, p. 26);
o violated Plaintiff’s Fourteenth Amendment right to equal protection because
every other inmate given a disciplinary hearing was afforded due process
protections as well as protections afforded under the TDCJ guidelines (D.E. 1,
p. 62);
o violated Plaintiff’s Fourteenth Amendment right to equal protection in
connection with their actions in denying Plaintiff access to certain heat-
mitigation measures during the summers of 2023 and 2024 (D.E. 1, p. 38; D.E.
15, p. 17);
o violated Plaintiff’s Fourteenth Amendment equal protection claims in
connection with their actions in denying Plaintiff access to certain heat-
mitigation measures during the summers of 2023 and 2024 (D.E. 1, p. 38; D.E.
15, 17);
● Law Librarian Thompson (sued in both her individual and official capacities):
o violated Plaintiff’s Eighth Amendment rights by failing to provide Plaintiff
with access to cups and water while Plaintiff was conducting legal research at
the law library (D.E. 1, p. 57; D.E. 15, p. 12);
o violated Plaintiff’s First Amendment rights when she denied Plaintiff water to
drink and a cup during dangerous heat conditions in retaliation for Plaintiff
exercising his right to petition the government (D.E. 1, p. 58; D.E. 15, p. 15);
and
● Plaintiff claims that each of the foregoing defendants (sued in their individual
and official capacities) violated his ADA and RA rights in connection with the
excessive heat conditions during the summers of 2023 and 2024.
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III. GOVERNING STANDARD FOR SCREENING PLAINTIFF’S ACTION
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. See
28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis
complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from an immune
defendant). A 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
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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.
Pleadings filed by pro se litigants like Plaintiff are construed using a less stringent
standard of review. Documents filed by pro se litigants are to be liberally construed, and pro
se complaints, however inartfully drafted they might be, are held to less stringent standards
than formal pleadings drafted by lawyers. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir.
2002) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Estelle v. Gamble, 429
U.S. 97, 106 (1976). A plaintiff’s well-pleaded factual allegations in the complaint are to be
taken as true for purposes of screening, but such deference does not extend to conclusory
allegations, unwarranted factual inferences, or legal conclusions. DeMarco v. Davis, 914
F.3d 383, 386-87 (5th Cir. 2019).
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IV. DISCUSSION
A. Plaintiff’s § 1983 Claims
Section 1983 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).
Several of the defendants sued in their individual capacities in this case are
supervisory officials. “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 § 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).
“Each Government official, his or her title notwithstanding, is only liable for his or
her own misconduct.” Iqbal, 556 U.S. at 677. A plaintiff “must plead that each
Government-official defendant, through the official’s own individual actions, has violated
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the Constitution.” Id. at 676. A supervisory official may be held liable only if “(1) he
affirmatively participates in the acts that cause the constitutional deprivation, or (2) he
implements unconstitutional policies that causally result in the constitutional injury.” Porter
v. Epps, 659 F.3d 440, 446 (5th Cir. 2011).
Supervisory liability without overt personal participation in the offensive act thus can
lie only if the supervisory official “implement[s] a policy so deficient that the policy itself is
a repudiation of constitutional rights and is the moving force behind the constitutional
violation.” Thompkins, 828 F.2d at 304 (internal quotations omitted). “A policy is normally
an official statement, ordinance, or regulation, but in certain circumstances a persistent,
widespread practice that is so commonplace as to constitute a custom can also be treated as
policy.” McNeil v. Caruso, No. 17-01688, 2019 WL 1435831, at *2 (M.D. La. Mar. 28,
2019) (citing Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001)).
Furthermore, Ex parte Young provides “an equitable exception to Eleventh
Amendment sovereign immunity ... [that] allows plaintiff to sue a state official, in his official
capacity, in seeking to enjoin enforcement of a state law [or policy] that conflicts with
federal law.” Air Evac EMS, Inc. v. Texas, Dep’t of Ins., Div. of Workers' Comp., 851 F.3d
507, 515 (5th Cir. 2017) (citing Ex parte Young, 209 U.S. 123, 155-56 (1908)). “In
determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to
suit, a court need only conduct a straightforward inquiry into whether the complaint alleges
an ongoing violation of federal law and seeks relief properly characterized as prospective.”
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Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (internal
quotations and modifications omitted).
Under the Ex Parte Young exception, plaintiffs may bring “suits for injunctive or
declaratory relief against individual state officials acting in violation of federal law.” Raj v.
Louisiana State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (citing Ex parte Young, 209 U.S. at
155-56). To be a proper defendant, the state official must have “some connection” to the
law’s enforcement. Ex parte Young, 209 U.S. at 157. “The required ‘connection’ is not
‘merely the general duty to see that the laws of the state are implemented,’ but ‘the particular
duty to enforce the [law] in question and a demonstrated willingness to exercise that duty.’”
Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (quoting Okpalobi v. Foster, 244
F.3d 405, 416 (5th Cir. 2001) (en banc)). Ex parte Young only applies, therefore, when the
state official has “some connection to the state law’s enforcement, which ensures that the suit
is not effectively against the state itself.” Texas Democratic Party v. Abbott, 961 F.3d 389,
400 (5th Cir. 2020) (internal quotations and citations omitted).
1. Eleventh Amendment Immunity and Official Capacity (Money
Damages)
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
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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).
To the extent that Plaintiff sues Defendants in their official capacities for money
damages, such claims are barred by the Eleventh Amendment. Thus, the undersigned
respectfully recommends that Plaintiff’s § 1983 claims for money damages against each
named defendant sued in his or her official capacity be dismissed without prejudice.8
2. Deliberate Indifference
The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend.
VIII. “The Constitution does not mandate comfortable prisons . . . but neither does it permit
inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”
Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (quoting Woods v. Edwards, 51 F.3d
577, 581 (5th Cir. 1995) (per curiam) (internal quotations omitted)). An Eighth Amendment
8 Claims implicating the Eleventh Amendment are dismissed without prejudice because the Eleventh Amendment
deprives the Court of subject matter jurisdiction. See Planned Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 450
(5th Cir. 2022) (observing that “the Eleventh Amendment generally deprives federal courts of jurisdiction” over certain
suits); United States v. Texas Tech Univ., 171 F.3d 279, 285 n.9 (5th Cir. 1999) (“While the Supreme Court has left this
question open, [the Fifth Circuit] has repeatedly referred to the Eleventh Amendment’s restriction in terms of subject
matter jurisdiction.”).
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violation occurs when a prison official acts with deliberate indifference to an inmate’s health
and safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Prison officials must provide humane conditions of confinement and ensure that
inmates receive adequate food, clothing, shelter, and medical care. Farmer, 511 U.S. at 832.
Conditions that result in “unquestioned and serious deprivations of basic human needs” or
“deprive inmates of the minimal civilized measure of life’s necessities” violate the Eighth
Amendment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Hudson v. McMillian,
503 U.S. 1, 8-10 (1992).
Extreme temperatures in prison can violate the Eighth Amendment. Yates v. Collier,
868 F.3d 354, 360 (5th Cir. 2017); Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015); Gates
v. Cook, 376 F.3d 323, 333 (5th Cir. 2004). The Fifth Circuit has held that inmates have a
right under the Eighth Amendment not to be subjected to extreme temperatures without
adequate remedial measures. See Hinojosa v. Livingston, 807 F.3d 657, 670 (5th Cir. 2015)
(citing Gates, 376 F.3d at 339-40). “[W]e have repeatedly recognized the serious risk of
harm that excessive heat can pose in the prison context absent adequate mitigating measures,
and we have consistently found evidence sufficient in these cases to support an Eighth
Amendment violation, even when certain mitigating measures were available.” Yates, 868
F.3d at 361; see also Ball, 792 F.3d at 596 (affirming “district court’s conclusion that
housing these prisoners in very hot cells without sufficient access to heat-relief measures,
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while knowing that each suffers from conditions that render him extremely vulnerable to
serious heat-related injury, violates the Eighth Amendment”).
“Deliberate indifference is an extremely high standard to meet.” Domino v. Tex.
Dep’t of Crim. Just., 239 F.3d 752, 755 (5th Cir. 2001). The test for deliberate indifference
has both an objective and subjective prong. Farmer, 511 U.S. at 838-40. Under the
objective prong, the inmate must first prove “an objective exposure to a substantial risk of
harm.” Valentine v. Collier, 993 F.3d 270, 281 (5th Cir. 2021). “[I]nmates need not show
that death or serious injury has already occurred to prove that unconstitutional conditions
exist under the objective element[,] . . . [r]ather, they need only show that there is a
substantial risk of serious harm.” Garrett v. Lumpkin, 96 F.4th 896, 900-01 (5th Cir. 2024)
(internal quotations and citation omitted). Under the objective prong, therefore, Plaintiff
need not show actual harm to his health based on the purported excessive heat conditions in
his cell. Id. at 901.
To prove the subjective prong of the deliberate indifference test, the inmate must
establish that the prison official “had subjective knowledge that the inmate faced a
substantial risk of harm [to the inmate’s health and safety] and . . . [consciously] disregarded
the risk.” Valentine, 993 F.3d at 281; see also Lawson v. Dall. Cnty., 286 F.3d 257, 262 (5th
Cir. 2002). A prison official’s knowledge of a substantial risk may be inferred if the risk was
obvious. Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006). The Fifth Circuit has
“consistently recognized . . . that ‘deliberate indifference cannot be inferred merely from a
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negligent or even a grossly negligent response to a substantial risk of serious harm.’” Dyer
v. Houston, 964 F.3d 374, 381 (5th Cir. 2020) (quoting Thompson v. Upshur Cnty., Tex., 245
F.3d 447, 458-59 (5th Cir. 2001)); see also Aguirre v. City of San Antonio, 995 F.3d 395, 420
(5th Cir. 2021) (“Negligence or even gross negligence is not enough, the officials must have
actual knowledge of the substantial risk”).
Thus, to survive screening, Plaintiff’s claim of each defendant’s liability must
plausibly allege nonconclusory facts indicating that the relevant defendant personally
participated in the violation of Plaintiff’s rights and that the defendant had subjective
knowledge that Plaintiff faced a substantial risk of harm to his health and safety and then
disregarded that risk. See Valentine, 993 F.3d at 281; Cook v. Crow, No. 1:20-CV-85, 2021
WL 6206795, at *3 (E.D. Tex. July 26, 2021), adopted, 2022 WL 23169 (E.D. Tex. Jan. 3,
2022) (citing Farmer, 511 U.S. at 840-41, and Calhoun v. Hargrove, 312 F.3d 730, 734 (5th
Cir. 2002) (plaintiff must plausibly allege that each defendant was “aware of an excessive
risk to the plaintiff’s health or safety, and yet consciously disregarded the risk.”). Plaintiff
must allege that the relevant defendant was aware of facts from which the inference could be
drawn that a substantial risk of serious harm existed, and that the defendant also actually
drew that inference. See Domino, 239 F.3d at 755.
A defendant’s subjective knowledge could be plausibly alleged in a number of ways,
including inference from circumstantial evidence of which the defendant is aware, and under
exceptional circumstances a defendant’s knowledge of a substantial risk of harm may be
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inferred by the obviousness of the risk, if that official is aware of the facts from which that
inference could be drawn. See Domino, 239 F.3d at 755; Farmer, 511 U.S. at 842; Easter,
467 F.3d at 463. However, the failure to alleviate a significant risk that an official should
have perceived, but did not, does not constitute deliberate indifference. Farmer, 511 U.S. at
838.
i. Official Capacity claims
Plaintiff sues each named defendant in his or her official capacity. He seeks
declaratory and injunctive relief with respect to his § 1983 deliberate indifference claims
brought against Defendants in their official capacities. Plaintiff seeks injunctive relief
primarily in the form of transfer to an air-conditioned environment during the summer
months along with sufficient access to all heat mitigation measures under AD-10.64. (D.E.
1, p. 67). The undersigned first consider whether such relief has been rendered moot by his
transfer from the McConnell Unit first to the Clemons Unit and then to the Hughes Unit
during the pendency of this case.
A claim becomes moot “when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013). In other words, if a controversy between parties resolves to the point that they no
longer qualify as “‘adverse parties with sufficient legal interests to maintain the litigation,’” a
court is without power to entertain the particular claim. Sossamon v. Lone Star State of
Texas, 560 F.3d 316, 324 (5th Cir. 2009) (quoting United States v. Lares-Meraz, 452 F.3d
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352, 354 (5th Cir. 2006) (per curiam)). Courts, therefore, lack “constitutional jurisdiction”
to resolve an issue where there is no Article III controversy. See Goldin v. Bartholow, 166
F.3d 710, 717 (5th Cir. 1999).
Generally, where an inmate challenges conditions of confinement at a particular
prison facility, the transfer of the inmate out of that facility generally renders moot any
claims for injunctive or declaratory relief moot against defendants at that unit. See Herman
v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (holding that plaintiff’s transfer to a different
prison facility rendered his claims for declaratory and injunctive relief moot); Cooper v.
Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991) (concluding that inmate’s
transfer from county jail to state prison rendered moot his claims for injunctive relief); Sias
v. Jacobs, No. 6:17cv413, 2017 WL 8229544, at *4 (E.D. Tex. Dec. 11, 2017) (holding that
prisoner’s transfer from a prison unit renders moot his claims of deliberate indifference to his
health when seeking injunctive relief against the defendants at that unit).
An exception to the mootness doctrine lies in controversies that are “capable of
repetition, yet evading review.” United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1540
(2018). The exception is available where “‘(1) the challenged action [is] in its duration too
short to be fully litigated prior to cessation or expiration,’ and (2) ‘there [is] a reasonable
expectation that the same complaining party [will] be subject to the same action again.’”
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016) (alterations in original)
(quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).
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In certain circumstances where an inmate is transferred to another prison, an inmate
may avoid dismissal on mootness grounds by identifying in his complaint a statewide or
prison-system policy that led to the constitutional violations which remain ongoing at the
new prison unit. See Oliver, 276 F.3d at 741; see also Lehn v. Holmes, 364 F.3d 862, 871-72
(7th Cir. 2004) (reversing district court's dismissal of inmate’s complaint on mootness
grounds, concluding that inmate was not seeking injunctive relief for a condition specific to a
particular prison, but rather was seeking relief from a condition that stems from a system-
wide policy). Such allegations of a system-wide policy relate to the principle as to whether
an alleged constitutional violation is “capable of repetition yet evading review.” Oliver, 276
F.3d at 741 (citation omitted).
The majority of Plaintiff’s Eighth Amendment claims challenge incidents occurring at
the McConnell Unit during the summers of 2023 and 2024 and implicate the conditions of
his confinement there as impacted by the excessive summer heat. Plaintiff’s claims for
declaratory and injunctive relief specifically challenging the various conditions of his
confinement at the McConnell Unit have been rendered moot by his transfer from that unit.
See Green v. Mansour, 474 U.S. 64, 71-73 (1985) (explaining that an injunction is not
available when there is no continuing violation of federal law to enjoin, and that declaratory
relief likewise is barred under such circumstances where there is “no claimed continuing
violation of federal law”).
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However, liberally construed, Plaintiff has identified prison-wide policies that resulted
in the violation of his Eighth Amendment right in connection with the excessively hot
conditions in his prison living area during the Texas summer heat. Specifically, Plaintiff
cites the following prison-wide policies: (1) the heat mitigation measures set forth in AD-
10.64; (2) the state-wide custom of operating each prion unit at an understaffed level which
is insufficient to carry out the policies of AD-10.64;9 and (3) the 24/7 building schedule
leading to sleeping conditions in an excessively hot environment.10 (D.E. 1, pp. 57-58; D.E.
15, pp. 8, 13). Plaintiff’s allegations indicate that he remains subject to these prison-wide
policies at his present unit during the summer months. Accepting Plaintiff’s allegations as
true, he sufficiently alleges plausible Eighth Amendment conditions of confinement claims
based on these three prison-wide policies that ostensibly remain in place at his present unit.
The Court next turns to consider which, if any of the named defendants on their
official capacities, have the ability to effectuate any injunctive relief should Plaintiff prevail
in this case. A review of Plaintiff’s allegations reveal that only the TDCJ’s Executive
Director possesses policy-making authority with respect to creating and promulgating
policies and procedures to ensure Plaintiff’s safety during hot conditions. (D.E. 1, p. 4).
9 Plaintiff states that TDCJ has systemic staffing issues across its units, impacting the effectiveness of heat mitigations
policies under AD-10.64, through lack of wellness checks and other essential aspects. (D.E. 1, p. 20).
10 According to Plaintiff, the TDCJ Executive Director’s 14/7 building schedule does not allow for a specific amount of
sleep, does not change during the summer heat conditions, and fails to adjust sleeping hours to the coolest hours of the
morning. (D.E. 15, p. 13). Plaintiff explains that, during the summers of 2023 and 2024, he would only get about two to
three hours of sleep because the “cells, wall, and bed all retained heat” and because it remained “very hot and humid at
night in the cells.” Id.
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Plaintiff’s allegations are otherwise insufficient to indicate that any other defendants sued in
their official capacity has such policy-making authority.
Furthermore, all of the other defendants named by Plaintiff either were employed at
the McConnell Unit or, in the case of Regional Director Holmes, was alleged to “oversee the
operations of the McConnell Unit [to] ensure that [the TDCJ’s Executive Director’s] orders
were being carried out as directed.” (D.E. 1, p. 4). In contrast to the TDCJ’s Executive
Director, who oversees every TDCJ prison unit, none of the remaining defendants have the
requisite authority to effectuate any prospective injunctive relief on behalf of Plaintiff, who
is currently housed at a different prison. See McCreary v. Richardson, 738 F.3d 651, 655
(5th Cir. 2013) (“[Plaintiff] does not have standing to pursue injunctive relief because
[Defendant] is without authority to redress his injuries.”); Okpalobi, 244 F.3d at 426-27
(explaining that plaintiffs “have no case or controversy” with defendants who have no power
to redress the injuries alleged).
Accordingly, the undersigned recommends that:
● Plaintiff’s Eighth Amendment claims related to the implementation of heat
mitigation measures set forth in AD-10.64, the policy or custom of
understaffing each prison unit, and the 24/7 building schedule policy—which
remain ongoing at Plaintiff’s current housing assignment—be retained against
TDCJ’s current Executive Director (Bobby Lumpkin) in his official capacity
for declaratory and injunctive relief;11
● Plaintiff Eighth Amendment claims against every other named defendant in
11 The current TDCJ Executive Director is Bobby Lumpkin. As forth in a separate order, Bobby Lumpkin will be
substituted in place of Defendant Collier with respect to claims brought against him in his official capacity. See Federal
Rule of Civil Procedure 25(d).
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their official capacities for declaratory and injunctive relief be dismissed
without prejudice.12
ii. Individual Capacity claims
Failure to Train and Supervise
Plaintiff seeks to hold the following defendants responsible in their supervisory
capacities for failure to train subordinate staff during the summer heat conditions present in
2023 and 2024 and for failure to supervise subordinate staff regarding the implementation of
heat mitigation measures set forth in AD-10.64: Warden Amonett; Assistant Warden
Samaniego; Assistant Warden Flannel; Capt. Cavazos, Capt. Herbst, and Capt. Wilkens.
(D.E. 1, p. 57; D.E. 15, pp. 9-10). In a related claim, Plaintiff asserts that the following
defendants in their supervisory capacities improperly allowed subordinate officers to deviate
from the policies set forth in AD-10.64: Regional Director Holmes; Warden Amonett;
Assistant Warden Samaniego; and Assistant Warden Flannel. (D.E. 1, p. 57; D.E. 15, p. 8).
Plaintiff generally appears to claim that these supervisors as a group failed to properly train
or supervise subordinate officials.
To the extent claims against supervisory officials are based on a failure to train or
supervise, “the Fifth Circuit has held that a plaintiff must show that (1) the supervisor either
12 A review of Plaintiff’s pleadings reflects that he seeks to bring various First and Fourteenth Amendment claims
against many of the named defendants in their official capacities. Each of these claims relates to specific incidents
occurring at the McConnell Unit. Plaintiff does not seek to raise any of these constitutional claims against TDCJ’s
Executive Director or otherwise identify a prison-wide policy that would serve as the moving force behind any of these
claims. These claims seeking declaratory and injunctive relief against Defendants in their official capacities, therefore,
are subject to dismissal as moot. See Herman, 238 F.3d at 665; Sias, 2017 WL 8229544, at *4. Accordingly, the
undersigned recommends that Plaintiff’s First and Fourteenth Amendment claims against Defendants in their official
capacities for declaratory and injunctive relief also be dismissed without prejudice
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failed to supervise or train the subordinate officials; (2) a causal link exists between the
failure to train or supervise and the violation of the plaintiff’s rights; and (3) the failure to
train or supervise amounts to deliberate indifference.” Brown v. Gonzales, No. 2:23-CV-
068-Z-BR, 2024 WL 780452, at *4 (N.D. Tex. Jan. 26, 2024), adopted, 2024 WL 779240
(N.D. Tex. Feb. 26, 2024) (citing Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008)); see
also Porter, 659 F.3d at 446 (explaining that a plaintiff seeking to establish “supervisory
liability for constitutional violations committed by subordinate employees … must show that
the supervisor acted, or failed to act, with deliberate indifference, to violations of others’
constitutional rights committed by their subordinates”) (cleaned up) (emphasis in original).
Deliberate indifference in this context, therefore, requires “a conscious choice to endanger
constitutional rights” and the proof of deliberate indifference requires more than a single
instance of the lack of training or supervision causing a violation of constitutional rights.”
Mesa, 543 F.3d at 274. A claim of failure to train or supervise “presupposes an underlying
constitutional violation.” Brown, 2024 WL 780452, at *5 (citing Perryman v. Bloomfield, 69
F. App’x 659 (5th Cir. 2003)).
In order to successfully allege a claim against each supervisory official, a plaintiff
must allege that each supervisory official was “personally involved in the deprivation of his
rights.” Alexander v. Southern Health Partners, Inc., No. 3:22-cv-0395-x, 2023 WL
3961704, at *3 (N.D. Tex. June 12, 2023) (quoting Thomas v. Humfield, Nos. 92-2177, 92-
2179, 1994 WL 442484, at *5 (5th Cir. 1994)). Alexander further explained:
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And a plaintiff can’t, in conclusory fashion, assert that supervisory officials
collectively violated his rights. When a plaintiff fails to distinguish the actions
of each defendant, the plaintiff engages in quintessential shotgun pleading,
which could properly be disregarded. Shotgun pleading violates Federal Rule
of Civil Procedure 8’s “notice pleading standard by failing … to give the
defendants adequate notice of the claims against them and the grounds upon
which each claim rests.
Alexander, 2023 WL 3961704, at *3 (citations, quotations, and footnotes omitted); see also
Davis v. City of Alvarado, No. 19-CV-463-K-BK, 2019 WL 6896878, at *4 n.2 (N.D. Tex.
Dec. 3, 2019 (recognizing that “shotgun pleading must be disregarded where it uses blanket
terms to address all defendants collectively or asserts multiple claims against multiple
defendants without specifying which defendants are responsible for which acts” (cleaned
up)), adopted, 2019 WL 6894686 (N.D. Tex. Dec. 18, 2019), aff’d, 835 F. App’x 714 (5th
Cir. 2020) (per curiam).
In his pleadings, Plaintiff essentially lumps all of the supervisory officials together in
alleging that they collectively failed to train or supervise subordinate staff with respect to the
handling of excessive heat conditions and the implementation of AD-10.64. Plaintiff fails to
delineate the respective alleged supervisory duties of each supervisory official during
excessive heat conditions and the timeframe when the protocols in AD-10.64 were in effect.
Plaintiff further fails to identify each supervisory official’s specific responsibilities in
training supervising subordinate staff employees. Without providing such detail as to the
supervisory responsibilities of each supervisory official named in these claims, Plaintiff is
deficient in providing each defendant notice of the grounds upon which his claims rest for
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supervisory liability based on his or her failure to train or supervise subordinate staff. As
noted in Alexander, these facts ultimately could be relevant in a qualified immunity analysis
potentially raised in a later stage of this case. See Alexander, 2023 WL 3961704, at *4.
Based on the infirmities present in Plaintiff’s shotgun pleading on this issue, the
undersigned recommends that Plaintiff’s Eighth Amendment claims of supervisory liability
based on failure to train or supervise subordinate staff as well as allowing subordinate staff
to deviate from AD-10.64 policies be dismissed as frivolous or for failure to state a claim for
relief against Regional Director Holmes, Warden Amonett, Assistant Warden Samaniego,
Assistant Warden Flannel, Capt. Cavazos, Capt. Herbst, and Capt. Wilkens in their
individual capacities.
Failure to Provide Sufficient Staffing Levels
Plaintiff seeks to hold the following defendants responsible in their supervisory
capacities for failing to provide for sufficient staffing levels at the McConnell Unit during
the summers of 2023 and 2024: Executive Director Collier; Regional Director Holmes,
Warden Amonett; Assistant Warden Samaniego; and Assistant Warden Flannel. (D.E. 1, p.
57; D.E. 15, pp. 7-9). Plaintiff allegations reflect as follows:
● Regional Director Holmes, who left as McConnell Unit’s warden during the
summer of 2023, was aware that the McConnell Unit was short staffed and
needed more staff to carry out the mandates of AD-10.64. (D.E. 1, p. 55).
● Regional Director Holmes, however, never attempted to provide these
resources even after becoming a regional director. Id.
● Warden Amonett, Assistant Warden Samaniego, and Assistant Warden
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Flannell also knew that the McConnell Unit was short staffed to handle the
mandates of the AD-10.64 and: (1) never attempted to provide staffing
resources or request such resources from Regional Director Holmes; and (2)
ordered subordinate officers to instead kick people out of the respite areas
after 15-30 minutes. Id.
● Regional Director Holmes, Warden Amonett, Assistant Warden Samaniego,
and Assistant Warden Flannell each knew that heat-restricted inmates like
Plaintiff were at risk of serious heat illnesses and due to excessive heat
conditions coupled with the lack of sufficient staff at the McConnell Unit
during the summers of 2023 and 2024. Id.
● Executive Director Collier also was aware that AD-10.64 was insufficient to
protect TDCJ inmates, including Plaintiff, “from the murderous Texas summer
climate.” Id. at 56.
● Executive Director Collier knew that TDCJ residents were endangered by
summer heat when a unit does not have sufficient summer staff and
nevertheless failed to provide for appropriate staffing on the McConnell Unit
despite knowing that the AD-10.64 measures would be subverted when a
TDCJ unit is short of staff. Id.
Id. at 56.
Plaintiff alleges further that these supervisory defendants knew that sufficient staff
was needed to carry out the heat mitigation mandates of AD-10.64, such as providing
sufficient ice and ice water, allowing access to medical screenings, respite, and cool showers,
and providing wellness checks during the brutal summer months. (D.E. 15, pp. 7-8).
Plaintiff’s allegations, accepted as true, indicate policies regarding staffing levels were
instituted or sanctions at the McConnell Unit which adversely impacted Plaintiff’s ability to
access many of the heat mitigation measures mandated by AD-10.64 when needed.
Although Plaintiff’s allegations lack sufficient detail to show that each of the named
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supervisory officials, whether executive TDCJ or McConnell Unit officials, had the authority
to reduce staffing levels or otherwise keep staffing levels at an insufficient level, such
authority must reside somewhere. The undersigned concludes that the lowest echelon of
plausible liability resides with the senior wardens in place at the McConnell Unit with regard
to staffing issues. A supervisory official may be liable under the Eighth Amendment if he
puts unconstitutional policies into effect, so Plaintiff’s allegations regarding the actions of
Executive Director Collier, Regional Director Holmes, and Warden Amonett state an Eighth
Amendment claim sufficient to survive screening. See Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 556. Accordingly, the undersigned recommends that the district court:
● retain Plaintiff’s Eighth Amendment deliberate indifference claims of
supervisory liability against Executive Director Collier, Regional Director
Holmes, and Warden Amonett in their individual capacities for putting into
place policies that resulted in inadequate staffing levels at the McConnell Unit
during the summers of 2023 and 2024;
● dismiss with prejudice as frivolous or for failure to state a claim for relief
Plaintiff’s Eighth Amendment deliberate indifference claim against Assistant
Warden Samaniego and Assistant Warden Flannell in their individual
capacities on this issues as frivolous or for failure to state a claim for relief.
Failure to Provide Cups and Water at the Law Library
Plaintiff seeks to hold the following defendants responsible for failing to provide cups
and/or water while Plaintiff accessed the McConnell Unit law library to prepare this action:
Law Librarian Thompson, Warden Amonett; Assistant Warden Samaniego; Assistant
Warden Flannel, and Capt. Cavazos, and unknown rank officers. (D.E. 1, p. 57; D.E. 15, p.
12). Plaintiff alleges that during the summers of 2023 and 2024:
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● Law Librarian Thompson prohibited cups from being brought into the law
library. (D.E. 1, p. 26).
● A large sign was posted on the window of the law library in “big black bold
letters” stating “No Cups.” Id.
● This sign was posted in a high-trafficked walking area where wardens, major,
and captains traversed frequently when visiting the law library. Id.
● Inmates were not allowed to drink water or use the restroom during their law
library session, which lasted two to two-an-a-half hours. Id.
● Plaintiff, therefore, could have a drink of water or use the bathroom by
choosing to end his law library session. Id.
● Due to the band on using the restroom, he would not drink anything at least
one hour before going to the law library so that he could continue his legal
research. Id.
● Overall, Plaintiff explains he would have to go four to six hours without
having a drink. Id.
● The McConnell Unit’s law library was air-conditioned at all times. (D.E. 15,
p. 12).
● As he visited the McConnell Unit’s law library regularly, he complained about
the ban on cups and drinking water, as well as medical issues suffered in the
law library, to Law Librarian Thompson, Assistant Warden Samaniego, and
Capt. Cavazos. (D.E. 1, p. 26; D.E. 15, p. 12).
● Capt. Cavazos remarked to Plaintiff that he should be allowed cups and water
but did nothing to remedy the situation. (D.E. 15, p. 12).
● Assistant Warden Samaniego told Plaintiff that he would “look into it.” Id.
● Other defendants ignored Plaintiff’s situation even though they could have
intervened. Id.
● Plaintiff suffered symptoms of tachycardia, dehydration, chest pain, and
dizziness during his law library session. Id.
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In assessing an inmate’s allegations of unconstitutional conditions of confinement, the
Supreme Court has noted that some complained-of conditions amount to no more than “a de
minimis level of imposition with which the Constitution is not concerned.” Ingraham v.
Wright, 430 U.S. 651, 674 (1977). Courts, therefore, are instructed to consider the duration
and the totality of the specific circumstances with respect to the plaintiff’s exposure to the
complained-of conditions. See Hutto v. Finney, 437 U.S. 678, 686–87 (1978); Palmer v.
Johnson, 193 F.3d 346, 553 (5th Cir. 1999).
Here, Plaintiff complains about Law Librarian Thompson’s policy barring cups and
prohibiting the drinking of water and access to the restroom during an inmate’s law library
session. Plaintiff acknowledges, however, that the law library was air-conditioned at all
relevant times as he describes no instance where the law library was not climate-controlled.
(D.E. 15, p. 12). His allegations indicate that he spent, at most, two and a half hours at the
law library during each visit, where he was subjected to the ban on cups, water, and going to
the bathroom. He alleges nothing to indicate that prison officials denied him the ability to
have water or go to the bathroom immediately before or after these short-term law library
sessions. While alleging that he suffered some symptoms of distress during his library time,
Plaintiff’s statements do not explain the severity of his symptoms. The undersigned finds,
therefore, that Plaintiff’s conclusory allegations are insufficient to show that he was exposed
to a substantial risk of imminent harm during his short-term stay in the climate-controlled
environment of the law library. Valentine, 993 F.3d at 281.
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Furthermore, Plaintiff’s conclusory allegations—with regard to his complaints to Law
Librarian Thompson and other officials about his medical issues suffered at the law library—
fail to show that these officials had the requisite subjective knowledge that Plaintiff faced a
substantial risk of harm to his health and safety and then disregarded that risk. See
Valentine, 993 F.3d at 281. Unlike the situation present with many of his deliberate
indifference claims. Plaintiff’s claim regarding his stay at the law library does not involve
direct exposure to excessive heat as the law library was air-conditioned at all times. Plaintiff
fails to allege non-conclusory facts to indicate that a substantial risk of harm was obvious via
his short-term stay in an air-conditioned environment. Whether or not Law Librarian
Thompson or any other official should have perceived a significant risk of harm to Plaintiff,
but failed to do so, is insufficient to constitute deliberate indifference. Farmer, 511 U.S. at
838.
Accordingly, the undersigned recommends that the district court dismiss with
prejudice as frivolous or for failure to state a claim for relief Plaintiff’s Eighth Amendment
deliberate indifference claim—based on failing to provide cups and/or water (as well as
denying access to the bathroom) while Plaintiff attended the McConnell Unit law library—
against Law Librarian Thompson, Warden Amonett; Assistant Warden Samaniego; Assistant
Warden Flannel, and Capt. Cavazos, and unknown officers in their individual capacities.
Placement in Respite In Small Cages
Plaintiff seeks to hold the following defendants responsible for placing him in a small
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cage for respite on several occasions during the summer of 2023 and on September 4, 2024:
Sgt. J. Perez, Sgt. Ralphs, Sgt. Martinez, Officer Chapa, and Maj. Masters. (D.E. 15, p. 6).
Plaintiff alleges the following relevant facts:
● On several occasions when allowed respite during the summer of 2023, he was
placed in a small cage within an air-conditioned area in the 12 Building. (D.E.
1, p. 29; D.E. 15, p. 6).
● The small cages were the size of phone booths. (D.E. 15, p. 7).
● Plaintiff was forced to remain in this cage for hours without access to water or
a restroom. (D.E. 1, p. 29; D.E. 15, p. 6).
● On June 20, 2023, after Plaintiff left the infirmary, Maj. Masters sent Plaintiff
to respite in the 12 Building. (D.E. 1, p. 37).
● Upon arrival at the 12 Building, Plaintiff was placed in a “phone booth sized
holding cage that was coated in pepper spray” with no access to water or the
restroom. Id.
● On September 4, 2024 at 12:15 a.m., Plaintiff was escorted from the 3
Building to the 12 Building by Sgt. Ralphs and locked in a phone booth-sized
cage for about seven hours with no access to a restroom or water. (D.E. 1, p.
53).
● Nevertheless, Plaintiff alleges that at 2:00 a.m. or 3:00 a.m.—only a couple of
hours after being escorted to the 12 Building—he received some water. Id.
With regard to his Eighth Amendment “cage” claims, Plaintiff does not allege that the
respite location presented a significant risk to his health. He alleges nothing to indicate that
he suffered any injuries or was likely to suffer any significant injuries even though he was
allegedly denied water and bathroom access during his time in “caged” respite. Plaintiff
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further does not allege any non-conclusory facts to suggest that the pepper-spray coated
cages exposed him to a substantial risk of serious injury.
Plaintiff’s conclusory allegations also fail to show that either Sgt. J. Perez, Sgt.
Ralphs, Sgt. Martinez, Officer Chapa, or Maj. Masters had the requisite subjective
knowledge that Plaintiff faced a substantial risk of harm to his health and safety through his
placement for a limited time in an air-conditioned cage and then disregarded that risk. See
Valentine, 993 F.3d at 281. Again, unlike the situation present with many of his deliberate
indifference claims. Plaintiff’s claim regarding his placement in air-conditioned cages does
not involve direct exposure to excessive heat. Plaintiff fails to allege non-conclusory facts to
indicate that a substantial risk of harm was obvious via his short-term stay in these air-
conditioned cages. Whether or not any prison official should have perceived a significant
risk of harm to Plaintiff, but failed to do so, is insufficient to constitute deliberate
indifference. Farmer, 511 U.S. at 838.
Accordingly, the undersigned recommends that the district court dismiss with
prejudice as frivolous or for failure to state a claim for relief Plaintiff’s Eighth Amendment
deliberate indifference claim—based on his placement in respite in air-conditioned respite
cages during the summer of 2023 and September 4, 2024—against Sgt. J. Perez, Sgt. Ralphs,
Sgt. Martinez, Officer Chapa, and Maj. Masters in their individual capacities.
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Denial of Heat-Mitigation Measures in 2023 and 2024 (Claims Retained)
Plaintiff asserts numerous Eighth Amendment claims against the named defendants in
connection with incidents during the summers of 2023 and 2024 where certain heat-
mitigation measures were denied him. With respect to the claims discussed in this
subsection, Plaintiff specifically alleges that the named defendant denied him the requested
heat-mitigation measure despite having knowledge of Plaintiff suffering from a heat-related
illness and was aware of Plaintiff’s serious medical conditions at the time of the incident.
Each of these claims, accepting Plaintiff’s allegations as true and for screening purposes, are
sufficient to state that the named defendant’s denial of heat-mitigation measures, was taken
with deliberate indifference to a substantial risk of serious harm posed by Plaintiff’s medical
condition given the heat conditions he was experiencing at the time. Accordingly, the
undersigned recommends that the district court retain Plaintiff’s Eighth Amendment
deliberate indifference claims against:
● Lieutenant Dougherty, Sgt. Hampson, and Sgt. Martinez in their individual
capacities for allegedly denying him respite, a cool shower, and/or medical
attention on June 4, 2023;
● Captain Herbst, Lt. Bliedrey, Lt. Dougherty and Sgt. Martinez, and unknown
correctional officers13 in their individual capacities for allegedly denying him
respite, a cool shower, and/or medical attention on June 18, 2023;
13 The use of “John Doe” or unknown defendants is disfavored. However, permitting Plaintiff to state claims against
unknown corrections officers beyond the screening stage allows for the conduct of discovery to give Plaintiff the
opportunity to identify these unknown defendants. See Hagwood v. Texas, No. 3:16-cv-3038-G-BN, 2017 WL 378127,
at *3 (N.D. Tex. Jan. 5, 2017), adopted, 2017 WL 377925 (N.D. Tex. Jan. 26, 2017) (citing Green v. Doe, 260 F. App’x
717, 719 (5th Cir. 2017) (per curiam)); Colle v. Brazos Cnty., Tex., 981 F.2d 237, 243 n.20 (5th Cir. 1993).
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● Sgt. Martinez and Officer Chapa in their individual capacities for allegedly
denying him respite and/or access to medical on June 26, 2023;
● Sgt. J. Perez in his individual capacity for allegedly denying him respite on
July 19, 2023;
● Officer Sanchez in his individual capacity for allegedly refusing Plaintiff
medical attention on July 22, 2023, after being sent to medical by another
officer;
● Sgt. Ramirez, Officer Sanchez, and an unknown correctional officer in their
individual capacities allegedly denying him access to respite and medical
attention on July 30, 2023;
● Sgt. Austin in his individual capacity for allegedly denying Plaintiff respite on
September 7, 2023, a day that fell during a brutal heart wave and fell on the
first day after Plaintiff was moved from a climate-controlled living area;
● Officer (or sergeant) Raone in his individual capacity for allegedly denying
Plaintiff respite and a cool shower on September 21, 2023, despite having
shown him his heat restrictions; and
● Officer Rangel, Officer Haso, and an unknown captain in their individual
capacities for allegedly denying Plaintiff respite on May 20, 2024.
Denial of Heat-Mitigation Measures in 2023 and 2024 (Claims Dismissed)
Plaintiff asserts numerous additional Eighth Amendment claims against named and
unknown defendants arising from incidents that occurred during the summers of 2023 and
2024 where certain heat-mitigation measures were allegedly denied him. First, to the extent
that Plaintiff asserts an Eighth Amendment claim based on prison officials’ failure to adhere
to the heat mitigation measures set forth in AD-10.64, such claim is subject to dismissal. A
violation of prison policy, without more, does not give rise to a viable civil rights claim, if
constitutional minima are otherwise met. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.
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1996). In this case, therefore, Plaintiff must plausibly allege more than a mere violation of
AD-10.64 by plausibly alleging that the conditions themselves that present an unreasonable
risk of serious damage to his health.
In contrast to the claims discussed in the previous subsection, Plaintiff only provides
conclusory statements in support of his remaining various Eighth Amendment claims
challenging the denial of heat-mitigation measures. These allegations, accepted as true, fail
to show that the McConnell Unit prison official or officials referenced by Plaintiff had the
requisite subjective knowledge that Plaintiff faced a substantial risk of harm to his health and
safety in connection with the denial of either respite, medical attention, or cool showers. See
Valentine, 993 F.3d at 281. Plaintiff provides insufficient factual detail on each of these
incidents to plausibly show that the McConnell Unit official present at the incident was
aware of Plaintiff’s medical conditions and had the requisite knowledge of Plaintiff having a
heat-related illness at the time the heat-mitigation measure was denied.14 Plaintiff further
fails to allege non-conclusory facts to indicate that a substantial risk of harm was obvious to
any of these officials at the time of the incidents cited below. Whether or not any prison
official should have perceived a significant risk of harm to Plaintiff in light of the summer
14 In the Order directing Plaintiff to file a More Definite Statement, the undersigned asked Plaintiff to provide detailed
allegations regarding each of the incidents occurring during the summers of 2023 and 2024. (D.E. 7, p, 9). As part of
Question 21, Plaintiff was asked to provide specific facts as to the heat conditions in effect during the incident, whether
Plaintiff was suffering from any medical issue, whether the prison official was aware of Plaintiff’s specific medical
needs in connection with the excessive heat conditions, and the medical issue suffered by Plaintiff on each incident. Id.
Rather than provide additional detail to supplement his claims as to each incident, Plaintiff referenced his allegations set
forth in his original complaint. (D.E. 15, p. 11) He further offered general and conclusory statements regarding the
excessive heat conditions and a general conclusory statement, lacking sufficient detail, that he told “each defendant at the
time of the incident that he was heat restricted and suffering medical problems.” Id.
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heat conditions, but failed to do so, is insufficient to constitute deliberate indifference.
Farmer, 511 U.S. at 838.
Accordingly, the undersigned recommends that the district court dismiss with
prejudice as frivolous or for failure to state a claim for relief Plaintiff’s deliberate
indifference claims against:
● several unknown officers in their individual capacities for allegedly denying
him respite and cool showers on three occasions on June 4, 2023;
● Sgt. Ralphs in his individual capacity for allegedly denying Plaintiff
unspecified measures under AD-10.64 on June 16, 2026;
● Sgt. Liserio in his individual capacity for allegedly refusing to provide
Plaintiff with respite on June 24, 2023, despite Plaintiff having posted a “need
respite” sign on his cell door;
● Sgt. Martinez, Officer Chapa, and an unknown officer for allegedly denying
Plaintiff respite and a medical screening on June 24, 2023;
● unknown officers in their individual capacity for allegedly denying Plaintiff
respite all day on July 14, 2023;
● an unknown female officer in her individual capacity for allegedly denying
Plaintiff respite at 5:15 p.m. and 6:05 p.m. on July 17, 2023;
● unknown officers in their individual capacities for allegedly denying Plaintiff
respite all day long on both July 24 and July 25, 2023;
● Sgt. Austin, Lt. Dougherty, Officer Reeves, and unknown officers in their
individual capacities for allegedly denying Plaintiff respite and cool showers
everyday (with the exception of the claim against Sgt. Austin discussed above
in connection with the denial of respite on September 7, 2023) between
September 7 and 17, 2023;
● Officer Liserio in his individual capacity for allegedly denying Plaintiff respite
and a medical screening at 5:15 p.m. on September 18, 2023;
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● Officer Liserio and an unknown officer in their individual capacities for
allegedly denying Plaintiff respite and a cool shower at 4:49 p.m. and 7:27
p.m. on September 19, 2023;
● an unknown sergeant in his or her individual capacity for allegedly denying
Plaintiff respite and a cool shower at 8:45 p.m. and 9:58 p.m. on September
20, 2023;
● Sgt. Ms. Perez and Officer Lopez in their individual capacities for allegedly
denying Plaintiff respite at 7:55 p.m. on May 4, 2024;
● Officer Oki in her individual capacity for allegedly ordering Plaintiff to leave
respite in the 10 Building and return to his cell on May 24, 2024;
● Officer Oki in her individual capacity for allegedly ordering Plaintiff to leave
respite on June 3, 2024, because Officer Oki had initiated an ICS;
● Sgt. Mr. Perez, unknown officers, and an unknown sergeant in their individual
capacities for allegedly ordering Plaintiff to leave respite on June 3, 2024;
● Sgt. Mr. Perez in his individual capacity for allegedly refusing to allow
Plaintiff to go to another respite area on June 3, 2024;
● Sgt. Gallaway and an unknown officer in their individual capacities for
allegedly denying Plaintiff respite on June 4, 2024;
● Sgt. Gallaway, Officer Contrerrez, and an unknown officer in their individual
capacities for allegedly denying Plaintiff respite on June 5, 2024;
● Sgt. Gallaway in his individual capacity for allegedly denying Plaintiff respite
on June 6, 2024;
● Officer Lopez and an unknown officer in their individual capacities for
allegedly denying Plaintiff respite on June 12 and 15, 2024;
● Officer Alonso in his individual capacity for allegedly denying Plaintiff respite
at 1:00 p.m. on June 28, 2024;
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● Officer De La Cruz in his individual capacity for allegedly denying Plaintiff
respite at 2:55 p.m. on June 28, 2024;
● Capt. Wilkens in his individual capacity for allegedly denying Plaintiff respite
at 8:50 p.m. on June 29, 2024;
● an unknown officer in his or her individual capacity for allegedly denying
Plaintiff respite at 9:10 p.m. and 9:20 p.m. on June 29, 2024;
● Officer Ms. Perez in her individual capacity for allegedly denying Plaintiff
respite at 10.25 p.m. on June 29, 2024;
● Officer De La Cruz in his individual capacity for allegedly denying Plaintiff
respite at 11.50 p.m. on June 29, 2024;
● Officer Florez in his individual capacity for allegedly denying Plaintiff respite
at noon on June 30, 2024;
● an unknown officer in his or her individual capacity for allegedly denying
Plaintiff respite at 2.00 p.m. on June 30, 2024;
● an unknown officer in his or her individual capacity for allegedly denying
Plaintiff respite at 9:25 p.m. on June 30, 2024;
● Sgt. Montavius in his individual capacity for allegedly denying Plaintiff
respite on July 7, 2024;
● an unknown official in his or her individual capacity for allegedly denying
Plaintiff respite at 2:30 p.m. and 6:00 p.m. on July 14, 2024;
● an unknown officer, cryptically named “Carbov”, in his or her individual
capacity for allegedly denying Plaintiff respite at 1:15 p.m. on July 21, 2024
and for kicking Plaintiff out of respite sometime after 2:00 p.m. later that day;
● an unknown official in his or her individual capacity for allegedly denying
Plaintiff respite at 3:10 p.m. and the rest of the day on July 23, 2024;
● an unknown official in his or her individual capacity for allegedly denying
Plaintiff respite at 2:15 p.m. on August 1, 2024;
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● Sgt. Alanis in his individual capacity for allegedly denying Plaintiff respite
sometime later in the afternoon on August 1, 2024; and
● Sgt. Tiamiyu in his individual capacity for allegedly denying Plaintiff’s
request to another respite area around 6:00 p.m. on August 8, 2024 and
instructing Plaintiff to go outside.
3. First Amendment (Freedom of Expression)
Plaintiff claims that his First Amendment right to freedom of expression was violated
when:
● on June 4, 2023, Lt. Dougherty tore down and destroyed a “need respite” sign
that Plaintiff had posted outside of his cell to notify administrators and
bystanding officials about what had happened to him that day (D.E. 1, p. 32;
D.E. 15, p. 14);
● on June 16, 2023, Sgt. Ralphs tore down and confiscated Plaintiff’s “need
respite sign (D.E. 1, p. 32; D.E. 15, p. 14); and
● on June 18, 2023, Sgt. Austin tore down and destroyed Plaintiff’s “need
respite” and “need medic” signs (D.E. 1, p. 35; D.E. 15, p. 14).
“A prison inmate is entitled to his First Amendment right to freedom of expression so
long as it is not inconsistent with his status as a prisoner and does not adversely affect a
legitimate state interest.” Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989) (citing Pell
v. Procunier, 417 U.S. 817, 822 (1974)). Plaintiff states that the actions of Lt. Dougherty,
Sgt. Ralphs, and Sgt. Austin effectively subverted, silenced, and discouraged him from
expressing himself and speaking out. (D.E. 15, p. 14).
Taking Plaintiff’s allegations as true and construing them liberally, his posting of the
“need respite” and “need medic” signs appears to have been his attempt to communicate to
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prison officials that his medical condition dictated that he be permitted to go to a respite area.
The undersigned finds no obvious state penological interest that would have been adversely
affected by Plaintiff’s posting of such signs on the outside of his cell door. As such, the
undersigned concludes that he has plausibly alleged First Amendment violations by these
three officials. Accordingly, the undersigned recommends that the district court retain
Plaintiff’s First Amendment freedom of expression claims against Lt. Dougherty, Sg.
Ralphs, and Sgt. Austin in their individual capacities.
4. First Amendment (Retaliation)
“An action motivated by retaliation for the exercise of a constitutionally protected
right is actionable, even if the act, when taken for a different reason, might have been
legitimate.” Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995). The purpose of allowing
retaliation claims under § 1983 is to protect against retaliatory actions that may chill an
individual’s exercise of constitutional rights. Perry v. Sinderman, 408 U.S. 593, 597 (1972).
However, “[r]etaliation against a prisoner is actionable only if it is capable of deterring a
person of ordinary firmness from further exercising his constitutional rights.” Morris v.
Powell, 449 F.3d 682, 685 (5th Cir. 2006).
The Fifth Circuit has recognized that the “prospect of endless claims of retaliation on
the part of inmates would disrupt prison officials in the discharge of their most basic duties.”
Woods, 60 F.3d at 1166. Claims of retaliation “must therefore be viewed with skepticism,
lest federal courts embroil themselves in every disciplinary act that occurs in state penal
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institutions.” Id. Thus, prisoners’ claims of retaliation are “carefully scrutinized by the
courts.” Toson v. Freeman, No. 1:22-cv-00085, 2023 WL 4998063, at *5 (N.D. Tex. July
24, 2023) (quoting Adeleke v. Fleckenstein, 385 F. App’x 386, 387 (5th Cir. 2010)).
To state a claim for retaliation, a prisoner must allege “(1) a specific constitutional
right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of that
right, (3) a retaliatory adverse act, and (4) causation,” a showing that but for the retaliatory
motive, the complained-of action would not have occurred. McDonald v. Steward, 132 F.3d
225, 231 (5th Cir. 1998). With regard to the first element of the test, an actual exercise of a
constitutional right is required. A prisoner’s claim of a right to adequate medical treatment
can be a constitutionally-protected activity. See Ward v. Fisher, 616 F. App’x 680, 684 (5th
Cir. 2015). The filing of a grievance or a lawsuit also constitutes constitutionally-protected
activity. See Gonzales v. Gross, 779 F. App’x 227, 230 (5th Cir. 2019) (per curiam); see
also Schorsch v. Miller, No. 2:19-CV-323, 2020 WL 5803255 (S.D. Tex. Aug. 11, 2020)
(Libby, M.J), adopted, 2020 WL 5802909 (S.D. Tex. Sep. 29, 2020) (recognizing that
“prison officials may not retaliate against a prisoner for exercising the righto to file lawsuits
and administrative grievances”).
The second element of the retaliation test requires a plaintiff to plausibly allege the
defendant’s intent to retaliate against the prisoner for his or her exercise of a constitutional
right. A plaintiff’s own statement that he believes he was the subject of retaliation is
insufficient to plausibly allege an actionable claim. See McDonald, 132 F.3d at 231.
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A retaliation plaintiff must also plausibly allege a retaliatory adverse act by that
defendant. To do so, a plaintiff must assert something “more than de minimis retaliation.”
Morris, 449 F.3d 682, 684-85. “Retaliation against a prisoner is actionable only if it is
capable of deterring a person of ordinary firmness from further exercising his constitutional
rights.” Id. at 686. To satisfy the de minimis test, “a prisoner must allege adverse facts that
rise ‘to the level of that which would deter the exercise of a constitutional right.’” Mitchell v.
Denton Cnty., No. 4:18-CV-399-ALM-KPJ, 2022 WL 989392, at *7 (E.D. Tex. Feb. 28,
2022), adopted, 2022 WL 9897819 (E.D. Tex. Mar. 31, 2022) (quoting Morris, 449 F.3d at
686). In Mitchell, the court found that because the plaintiff’s placement in an isolation cell
and his non-punitive segregation after he filed suit against defendants did not deter the
plaintiff “from further exercising his constitutional rights[,]” he did not satisfy the de minimis
test. Id.
Finally, a retaliation plaintiff must plausibly allege causation. As applicable here,
Plaintiff must plausibly allege a factual basis connecting his protected conduct and the
alleged retaliatory conduct. For example, the “mere existence of past grievances and a
subsequent negative event alone are not sufficient to state a claim for retaliation.” Landry v.
Townsend, No. 6:23cv057, 2023 WL 3369151, at *5 (E.D. Tex. Mar. 21, 2023), adopted,
2023 WL 3352138 (E.D. Tex. May 10, 2023). Indeed, temporal proximity alone is
insufficient to state “but for” causation in a retaliation claim. Reese, 322 F. App'x at 383; see
also Varner v. Cerliano, No. 6:13cv636, 2014 WL 2159739, at *7 (E.D. Tex. Apr. 17, 2014),
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adopted, 2014 WL 2159767 (E.D. Tex. May 22, 2014) (“The mere fact that Varner was
placed in segregation one day after helping other inmates file grievances does not itself show
a chronology from which retaliation may plausibly be inferred; temporal proximity alone is
insufficient to show ‘but for’ causation.”).
Denial of Water and Cups in the Law Library
Plaintiff claims that Law Librarian Thompson, Warden Amonett, Assistant Warden
Flannell, Assistant Warden Samaniego, Capt. Cavazos, and unknown rank officers violated
his First Amendment rights by denying him water and a cup in the law library during
dangerous summer heat conditions in retaliation for complaining about using the law library
and exercising his right to petition the government. (D.E. 1, p. 58). Plaintiff alleges that
during the summers of 2023 and 2024:
● Law Librarian Thompson prohibited cups from being brought into the law
library. (D.E. 1, p. 26).
● A large sign was posted on the window of the law library in “big black bold
letters” stating “No Cups.” Id.
● Inmates were not allowed to drink water or use the restroom during their law
library session, which lasted two to two-an-a-half hours. Id.
● As he visited the McConnell Unit’s law library regularly, he complained about
the ban on cups and drinking water, as well as medical issues suffered in the
law library, to Law Librarian Thompson, Assistant Warden Samaniego, and
Capt. Cavazos. (D.E. 1, p. 26; D.E. 15, p. 12).
● Capt. Cavazos remarked to Plaintiff that he should be allowed cups and water
but did nothing to remedy the situation. (D.E. 15, p. 12).
● Assistant Warden Samaniego told Plaintiff that he would “look into it.” Id.
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Assuming that actions prohibiting Plaintiff from having cups and water in the law
library constituted an “adverse act,” Plaintiff does not offer any direct evidence of any prison
official’s intent to retaliate against him for filing any complaints, grievances, or lawsuit on
this matter. Plaintiff alleges that the policy prohibiting cups in the law library stemmed from
an inmate’s grievance challenging her on some unspecified matter. (D.E. 15, p. 15).
However, Plaintiff’s allegations do not expressly detail that the policy was enacted directly
in response to a particular grievance filed by Plaintiff. Plaintiff further provides no details as
to when Plaintiff filed a grievance against Law Librarian Thompson, the subject matter of
the grievance, and the date that the policy was changed to prohibit cups in the law library.
Moreover, Plaintiff’s allegations indicate that the prohibition against cups applied to all
inmates using the law library, and not just Plaintiff.
Plaintiff further fails to plausibly allege any facts indicating causation – that is, that
the prohibition against cups and water in the law library would not have occurred had he not
sought to petition the government with regard to the actions of Law Librarian Thompson or
any other prison official. Plaintiff’s conclusory allegations reflect only his belief that he was
the victim of retaliation, which is insufficient to support a claim for retaliation. Epley v.
Lopez, No. 1:18-CV-00115, 2023 WL 2483502, at *14 (N.D. Tex. Feb. 27, 2023), adopted,
2023 WL 2481607 (N.D. Tex. Mar. 13, 2023).
Accordingly, the undersigned recommends that the district court dismiss with
prejudice as frivolous or for failure to state a claim for relief Plaintiff’s First Amendment
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retaliation claim against Law Librarian Thompson, Warden Amonett, Assistant Warden
Flannell, Assistant Warden Samaniego, Capt. Cavazos, and unknown rank officers in their
individual capacities.
Denial of Respite, Medical, and Cool Showers
Plaintiff claims that the following officials retaliated against him for complaining to
prison officials and the Court about the various incidents where he was denied respite,
medical, cool showers, and other heat-mitigation measures: Capt. Herbst, Capt. Wilkens, Lt.
Bliedrey, Lt. Dougherty, Sgt. Ralphs, Sgt. J. Perez, Sgt. Austin, Sgt. Ramirez, Sgt. Hampson,
Officer Liserio, Sgt. Ms. Perez, Sgt. Tiamiyu, Sgt. Galloway, Sgt. Montavius, Sgt. Mr. Perez,
Officer Chapa, Officer Sanchez, Officer Raone, Officer Oki, Officer Contrerrez, Officer
Alonso, Officer Lopez, Officer De La Cruz, Officer Ms. Perez, Officer Florez, Officer
Gbrrjh, unknown correctional officers, and unknown rank officers. Plaintiff basis these
retaliation claims on the following allegations set forth in his More Definite Statement:
● in connection with the June 4, 2023 incident involving Sgt. Martinez and Lt.
Dougherty, Plaintiff’s family filed an ombudsman complaint while Plaintiff
field Step 1 and Step 2 grievances;
● since June 4, 2023, Plaintiff carried around a notebook, in which he
documented instances of official misconduct;
● soon after Plaintiff writing officers’ name in his notebook, officers stopped
wearing their name tags at work;
● Plaintiff filed heat-related grievances on June 16 and June 18, 2023;
● Plaintiff subsequently began complaining about the conditions of his
confinement to Assistant Warden Flannell and Assistant Warden Samaniego;
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● Plaintiff also spoke with prison officials about: (1) the denial of medical
screening, respite, ice water, cool showers, and wellness checks; and (2) the
fact he was suffering from those denials due to his medical conditions and
medications;
● Plaintiff also assisted other inmates with writing and filing grievances
complaining about the summer heat conditions in 2023 and 2024;
● Plaintiff’s family called the McConnell Unit regularly through the summers of
2023 and 2024 in an attempt to help Plaintiff with his excessive heat issues;
● Plaintiff filed a civil rights action on August 3, 2023, complaining about the
excessive heat conditions during the summer of 2023, Crowley v. Collier, et
al., No. 2:23-CV-201 (S.D. Tex. filed on August 3, 2023) (“Crowley I”); and
● throughout the summers of 2023 and 2024, Plaintiff was denied various heat
mitigations measures while other non-heat-restricted inmates were allowed to
go to respite or cool showers.
(D.E. 15, pp. 15-17).
Assuming that each action described by Plaintiff in denying him certain heat-
mitigation measures in the summers of 2023 and 2024 constituted separate “adverse acts,”
Plaintiff does not offer any direct evidence of any prison official’s intent to retaliate against
him for filing any complaints, grievances, or lawsuit on this matter. He provides no detail
regarding each complained-of incident to suggest that the named defendant or unknown
official intended to retaliate against Plaintiff by denying him a requested heat-mitigation
measure.
Other than a possible temporal sequence in connection with the filing of complaints,
grievances, or a lawsuit, Plaintiff offers no nonconclusory facts indicating that any acts of
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denying him heat-mitigation measures by the named defendants or unknown officials was
motivated by an intent to retaliate. While alleging that he requested numerous heat
mitigation measures during the summers of 2023 and 2024 and was subsequently denied, the
“mere existence of past grievances and a subsequent negative event alone are not sufficient
to state a claim for retaliation.” See Landry, 2023 WL 3369151, at *5. Plaintiff’s allegations
do not show that any action taken by the named defendants or unknown officers dissuaded
him from continuing to request heat-mitigation measures or to engage in any other protected
activity such as filing grievances. Thus, Plaintiff claims at best constitute nothing more than
de minimis retaliation. Cf. Morris, 449 F.3d at 684-85.
Plaintiff further fails to plausibly allege any specific facts indicating causation – that
is, any of the acts denying him certain heat mitigation measures would not have occurred had
he not sought to file complaints, grievances, and a lawsuit complaining about the conditions
of his confinement during the summers of 2023 and 2024. Plaintiff’s conclusory allegations,
rather than show causation, reflect only his belief that he was the victim of retaliation, which
is insufficient to support a claim for retaliation. Epley, 2023 WL 2483502, at *14.
Accordingly, the undersigned recommends that the district court dismiss with
prejudice as frivolous or for failure to state a claim for relief Plaintiff’s First Amendment
retaliation claims—involving various incidents where he was denied respite, medical, cool
showers, and other heat-mitigation measures—against the following officials in their
individual capacities: Capt. Herbst, Capt. Wilkens, Lt. Bliedrey, Lt. Dougherty, Sgt. Ralphs,
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Sgt. J. Perez, Sgt. Austin, Sgt. Ramirez, Sgt. Hampson, Officer Liserio, Sgt. Ms. Perez, Sgt.
Tiamiyu, Sgt. Galloway, Sgt. Montavius, Sgt. Mr. Perez, Officer Chapa, Officer Sanchez,
Officer Raone, Officer Oki, Officer Contrerrez, Officer Alonso, Officer Lopez, Officer De
La Cruz, Officer Ms. Perez, Officer Florez, Officer Gbrrjh, unknown correctional officers,
and unknown rank officers.
Placement in Small Cages for Respite
Plaintiff claims that the following officials retaliated against him for filing grievances,
ombudsman complaints, or lawsuits by sending Plaintiff to a small cage for respite on
several occasions in June and July of 2023: Maj. Masters, Sgt. J. Perez, Sgt. Ralphs, Sgt.
Martinez, Officer Chapa, and unknown rank officials. (D.E. 15, pp. 6-7). Plaintiff alleges
the following relevant facts:
● On several occasions when allowed respite during the summer of 2023, he was
placed in a small cage within an air-conditioned area in the 12 Building. (D.E.
1, p. 29; D.E. 15, p. 6).
● The small cages were the size of phone booths. (D.E. 15, p. 7).
● Plaintiff was sent to the small cage “because he filed complaints, complained
to rank and staff, filed ombudsman complaints, and, because he filed
grievances.” (D.E. 15, p. 7).
● Plaintiff believes he was sent to the small cage “to detour [him] from
requesting respite and seeking shelter from the heat.” Id.
Assuming that Plaintiff suffered “adverse acts” by being sent to a small cage for
respite, Plaintiff does not offer any direct evidence of any prison official’s intent to retaliate
against him for filing any prior complaints, grievances, or lawsuit in this manner. Plaintiff
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does not detail that any prison official was aware of Plaintiff filing a grievance, complaint, or
lawsuit and then acting specifically in response to such filing by sending Plaintiff to a small
cage for respite rather than a normal room. Other than alleging a possible temporal sequence
in connection with the filing of complaints, grievances, or a lawsuit in general, Plaintiff
offers no nonconclusory facts indicating that the subject acts undertaken by Maj. Masters,
Sgt. Ralphs, Sgt. Martinez, Officer Chapa, and unknown rank officials were motivated by an
intent to retaliate.
Plaintiff further fails to plausibly allege any specific facts indicating causation – that
is, any of the acts in allegedly sending Plaintiff to a small cage for respite—would not have
occurred had he not sought to file complaints, grievances, or a lawsuit complaining about the
conditions of his confinement during the summers of 2023 and 2024. Plaintiff’s conclusory
allegations, rather than show causation, reflect only his belief that he was the victim of
retaliation, which is insufficient to support a claim for retaliation against these officials.
Epley, 2023 WL 2483502, at *14.
Accordingly, the undersigned recommends that the district court dismiss with
prejudice this First Amendment retaliation claim—involving the acts of sending Plaintiff to a
small cage for respite in June and July of 2023—as frivolous or for failure to state a claim for
relief against Maj. Masters, Sgt. J. Perez, Sgt. Ralphs, Sgt. Martinez, Officer Chapa, and
unknown rank officials in their individual capacities.
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Alleged Retaliation by Sgt. Martinez
Plaintiff claims that Sgt. Martinez retaliated against him for complaining and filing
grievances by alleging the following:
● Sgt. Martinez retaliated on June 18, 2023 when she refused Plaintiff medical
screening and respite, stole and broke his eyeglasses, and wrote him a false
disciplinary report;
● Sgt. Martinez refused Plaintiff respite and cool showers on other occasions in
June and July of 2023;
● Sgt. Martinez sent Plaintiff to the 12 Building on the occasions she did grant
him respite but refused him writing and reading material on those occasions;
● Sgt. Martinez refused Plaintiff a haircut on one occasion and did not require
subordinate officials to conduct wellness checks, to grant respite, to grant cool
showers, and to pass out ice water;
● on an unspecified date, Sgt. Martinez approached Plaintiff belligerently and
asked Plaintiff if he had a problem with her;
● on another unspecified date, Sgt. Martinez “directly state[d] to Plaintiff that he
was going to stop lying on her name”;
● on another unspecified date, Sgt. Martinez made fun of Plaintiff for having his
mom call the unit to help in getting relief from the heat illness he was
experiencing.
(D.E. 15, pp. 18-19).
Assuming that Plaintiff suffered “adverse acts” on June 18, 2023 with regard to being
denied respite and medical screening, having his eyeglasses broken, and having a false report
brought against him, Plaintiff does not offer any direct evidence of Sgt. Martinez’s intent to
retaliate against him for filing any prior complaints, grievances, or lawsuit on this matter.
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Plaintiff does not identify any specific complaints or grievances brought against Sgt.
Martinez before June 18, 2023. Plaintiff further does not detail whether Sgt. Martinez acted
belligerently to Plaintiff or otherwise made fun of him for calling his mom before the
incidents occurred on June 18, 2023. Even if Sgt. Martinez had made fun of Plaintiff on or
around that date, his allegations falls short of establishing the requisite retaliatory intent as
Sgt. Martinez did not allude to a constitutionally-protected activity undertaken by Plaintiff in
the form of filing grievances or complaints.
Likewise, with respect to any presumed “adverse acts” undertaken by Sgt. Martinez in
denying respite or other heat-mitigation measures to Plaintiff later in the summer of 2023,
sending him to the 12 Building when granted respite, or denying him a haircut, Plaintiff
offers no direct evidence of Sgt. Martinez’s intent to retaliate against him for filing any prior
complaints, grievances, or lawsuit. Plaintiff again does not identify any specific complaints
or grievances brought against Sgt. Martinez in the summer of 2023. Other than alleging a
possible temporal sequence in connection with the filing of complaints, grievances, or a
lawsuit in general, Plaintiff offers no nonconclusory facts indicating that any acts undertaken
by Sgt. Martinez during the summer of 2023 was motivated by an intent to retaliate.
Plaintiff further fails to plausibly allege any specific facts indicating causation – that
is, any of the acts allegedly committed by Sgt. Martinez in the summer of 2023 would not
have occurred had he not sought to file complaints, grievances, and a lawsuit complaining
about the conditions of his confinement during the summers of 2023 and 2024. Plaintiff’s
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conclusory allegations, rather than show causation, reflect only his belief that he was the
victim of retaliation, which is insufficient to support a claim for retaliation against Sgt.
Martinez. Epley, 2023 WL 2483502, at *14.
Accordingly, the undersigned recommends that the district court dismiss with
prejudice this First Amendment retaliation claim—involving various actions committed by
Sgt. Martinez during the summer of 2023—as frivolous or for failure to state a claim for
relief against Sgt. Martinez in her individual capacity.
Confiscation and Destruction of Legal Work Product
Plaintiff claims that unknown correctional officers retaliated against him for
complaining and filing grievances by confiscation and destroying his mini-forest green
notebook—which he had been carrying with him since June 4, 2023—on July 11, 2023.
(D.E. 15, pp. 16, 19). Plaintiff alleges the following pertinent facts as to this claim:
● since June 4, 2023, Plaintiff wrote in his notebook legal work product,
including the facts, dates and times, incidents, and locations of alleged
misconduct and/or civil rights violations committed by McConnell Unit
officials;
● in connection with an incident of misconduct, Plaintiff would request
grievance forms and ask prison officials for their names;
● the notebook also contains Plaintiff’s notes when he spoke with wardens and
other ranking officials as well as notes when officers and rank threatened him,
harassed him, and refused to provide their names
● officials sometimes would respond by not providing their names, and they
eventually stopped wearing name tags at work;
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● on July 11, 2023 at about 6:15 p.m., he received his property back from an
officer at the desk; and
● however, when he went through his returned property, Plaintiff allegedly
noticed that his mini-notebook was missing; and
● the notebook was ultimately confiscated and destroyed by unknown
correctional officers.
(D.E. 1, pp. 39, 59; D.E. 15, pp. 16, 19-20).
Assuming that the act of taking and destroying his notebook constituted an “adverse
act,” Plaintiff does not offer any direct evidence of any prison official’s intent to retaliate
against him for filing any complaints, grievances, or lawsuit on this matter. Plaintiff alleges
only that McConnell Unit officers were talking about Plaintiff’s notebook and the contents
therein. (D.E. 15, p. 20). These allegations do not specify the content of the officer’s
discussions, who was involved in the discussions, or otherwise expressly detail that the
taking of his notebook was in response to a constitutionally-protected activity, such as the
filing of a grievance or lawsuit.
Plaintiff instead asserts that retaliatory intent was obvious because McConnell Unit
officers refused to disclose their names to Plaintiff and that the notebook then turned up
missing. (D.E. 15, p. 20). An inmate’s request that a prison official tell the inmate his or her
name, however, is not speech protected by the First Amendment, and thus such requests
cannot form the basis for a First Amendment retaliation claim. See Sanchez v. Stephens, Civ.
No. B-15-155, 2016 WL 3981373, at *5 (S.D. Tex. June 29, 2016) (Morgan, M.J.), adopted,
2016 WL 3982523 (S.D. Tex. July 22, 2016). Likewise, secondary litigation activity – such
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as legal research and writing that does not involve the preparation of lawsuits challenging a
plaintiff’s conditions of his confinement – cannot comprise the basis of a retaliation claim.
See Rogers v. McLane, No. 5:22- CV-130, 2023 WL 4629044, at *18 (N.D. Tex. June 30,
2023), adopted, 2023 WL 4636894 (N.D. Tex. July 19, 2023) (citing and quoting Johnson v.
Rodriguez, 110 F.3d 299, 311 (5th Cir. 1997)). Thus, Plaintiff’s claim that the notebook was
taken in retaliation for asking prison officials for their names should be dismissed because he
fails to plausibly allege constitutionally-protected activity.
Plaintiff further fails to plausibly allege any facts indicating causation – that is, the
taking of his notebook would not have occurred had he not sought to file grievances or
petition the government. Plaintiff’s conclusory allegations again reflect only his belief that
he was the victim of retaliation, which is insufficient to support a claim for retaliation.
Epley, 2023 WL 2483502, at *14.
Accordingly, the undersigned recommends that the district court dismiss with
prejudice this First Amendment retaliation claim—involving the taking and destruction of
his notebook on July 11, 2023—as frivolous or for failure to state a claim for relief against
unknown correctional officers in their individual capacities.
Alleged Retaliation by Sgt. Ramirez
Plaintiff claims that Sgt. Ramirez retaliated in several ways against Plaintiff for filing
complaints, requesting her name, and requesting respite. (D.E. 1, p. 59; D.E. 15, p. 21).
Plaintiff alleges the following pertinent facts:
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● on June 20, 2023, Plaintiff was placed in respite in a small cage at which Sgt.
Ramirez passed by and complained about Sgt. Ramirez being there;
● on July 30, 2023, Sgt. Ramirez forced Plaintiff to leave respite in Building 10,
and denied giving Plaintiff her names and the official’s name that were with
her;
● Plaintiff explained to Sgt. Ramirez and the other officials on July 30, 2023 that
that he had recently filed a lawsuit on the issue of being denied respite and was
writing grievances on them; and
● on July 30, 2023, Plaintiff wrote a false major case against Plaintiff.
(D.E. 1, p. 42; D.E. 15, p. 21).
With respect to being placed in a small cage in the 12 Building’s respite area on June
20, 2023, Plaintiff offers no direct evidence of Sgt. Ramirez’s intent to retaliate against him
for filing any prior complaints, grievances, or lawsuit. Plaintiff does not identify any
specific complaints or grievances brought against Sgt. Ramirez before June 20, 2023. Other
than alleging a possible temporal sequence in connection with the filing of complaints,
grievances, or a lawsuit in general, Plaintiff offers no nonconclusory facts indicating Sgt.
Ramirez was motivated by an intent to retaliate in connection with Plaintiff’s placement in a
small cage on June 20, 2023.
Plaintiff further offers no direct evidence of Sgt. Ramirez’s intent to retaliate with
respect to her forcing Plaintiff to leave respite on July 30, 2023. Again, Plaintiff does not
identify any specific complaints or grievances brought against Sgt. Ramirez before July 30,
2023. Other than alleging a possible temporal sequence in connection with the filing of
complaints, grievances, or a lawsuit in general, Plaintiff offers no nonconclusory facts
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indicating Sgt. Ramirez was motivated by an intent to retaliate in connection with forcing
Plaintiff to leave respite on July 30, 2023.
Plaintiff does allege that Sgt. Ramirez wrote a major case against Plaintiff after
requesting names from Sgt. Ramirez and after Plaintiff indicated he had filed a lawsuit and
was in the process of writing a grievance on her for kicking him out of respite. (D.E. 15, p.
21). As discussed above, asking for officers’ names is not a constitutionally protected
activity. See Sanchez, 2016 WL 3981373, at *5. However, Plaintiff’s allegations reflect that
Sgt. Ramirez became aware of Plaintiff’s lawsuit regarding the excessive heat conditions at
the McConnell Unit and a pending grievance against her on the same day just before she
filed an allegedly false disciplinary case against Plaintiff. The undersigned finds that these
allegations are sufficient to indicate a chronology of events from which retaliation can be
plausibly inferred as to the filing of the false disciplinary case. Cf. Armenta v. Pryor, 377 F.
App’x 413, 416 (5th Cir. 2010) (holding that plaintiff failed to establish a chronology of
events from which retaliation may plausibly be inferred where there was “no evidence that
any of the Defendants were named in, or had any knowledge of, his prior grievances or his
lawsuit.”).
Accordingly, the undersigned recommends that Plaintiff’s retaliation claim regarding
Sgt. Ramirez’s action in filing a false disciplinary case on July 30, 2023 be retained against
her in her individual capacity. The undersigned further recommends that the following
retaliation claim against Sgt. Ramirez in her individual capacity be dismissed as frivolous or
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for failure to state a claim for relief: (1) Sgt. Ramirez’s actions in placing Plaintiff in a small
respite cage on June 20, 2023; and (2) Sgt. Ramirez’s action in forcing Plaintiff to leave
respite on July 30, 2023.
Alleged Retaliation by Officer Oki
Plaintiff claims that Officer Oki retaliated against Plaintiff for filing complaints,
requesting her name, and being in respite. (D.E. 1, pp. 48, 59; D.E. 15, p. 22). Plaintiff
alleges the following pertinent facts:
● after Plaintiff spent 15 minutes in the 10 Building respite on June 3, 2024,
Officer Oki allegedly ordered Plaintiff and all other inmates in respite to leave
because Officer Oki initiated an ICS;
● after kicking Plaintiff out of respite, Plaintiff requested Officer Oki’s name
and informed her that a grievance would be brought against her; and
● Officer Oki then brought a false disciplinary case against Plaintiff.
(D.E. 1, p. 48; D.E. 15, p. 22).
Plaintiff offers no direct evidence of Officer Oki’s intent to retaliate with respect to
her forcing Plaintiff to leave respite on June 3, 2024. Plaintiff does not identify any specific
complaints or grievances brought against Officer Oki before June 3, 2024. Other than
alleging a possible temporal sequence in connection with the filing of complaints,
grievances, or a lawsuit in general, Plaintiff offers no nonconclusory facts indicating Officer
Oki was motivated by an intent to retaliate in connection with forcing Plaintiff to leave
respite on June 3, 2024.
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Plaintiff does allege that Officer Oki wrote a disciplinary case against Plaintiff after
requesting her name and after Plaintiff indicated he was in the process of writing a grievance
on her for kicking him out of respite. (D.E. 15, p. 22). As discussed above, asking for an
officer’s name is not a constitutionally protected activity. See Sanchez, 2016 WL 3981373,
at *5. However, Plaintiff’s allegations reflect that Officer Oki became aware of grievance
against her just before she filed an allegedly false disciplinary case against Plaintiff. The
undersigned finds that these allegations are sufficient to indicate a chronology of events from
which retaliation can be plausibly inferred as to the filing of the false disciplinary case. Cf.
Armenta, 377 F. App’x at 416.
Accordingly, the undersigned recommends that Plaintiff’s retaliation claim regarding
Officer Oki’s action in filing a false disciplinary case on June 3, 2024 be retained against her
in her individual capacity. The undersigned further recommends that Plaintiff’s retaliation
claim against Officer Oki in her individual capacity—regarding her action in allegedly
kicking Plaintiff out of respite on June 3, 2024—be dismissed with prejudice as frivolous or
for failure to state a claim for relief.
Alleged Retaliation by Sgt. Tiamiyu and Officer Gbrrjh
Plaintiff claims that Officer Oki and Officer Gbrrjh retaliated against Plaintiff for
filing complaints, requesting officers’ names, and being in respite. (D.E. 1, pp. 48, 59; D.E.
15, p. 22). Plaintiff alleges the following pertinent facts:
● on August 8, 2024, Plaintiff entered the 3 Building’s respite area at 6:00 p.m.,
because his skin began to burn as gas had been sprayed;
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● Sgt. Tiamiyu denied Plaintiff’s request to go to another respite area and
instructed Plaintiff to go outside;
● Plaintiff subsequently requested the names of Sgt. Tiamiyu and other officials
and informed Sgt. Tiamiyu that a grievance would be brought against him;
● Sgt. Tiamiyu then informed Plaintiff that he would file a disciplinary case
against Plaintiff because Plaintiff was filing a grievance against him;
● Sgt. Tiamiyu and Officer Gbrrjh then brought a false disciplinary case against
Plaintiff; and
● on August 20, 2024, Plaintiff was found not guilty of the charges contained in
the disciplinary case brought by Sgt. Tiamiyu and Officer Gbrrjh.
(D.E. 1, pp. 51-52; D.E. 1-1, p. 20; D.E. 15, p. 22).
Plaintiff offers no direct evidence of Sgt. Tiamiyu’s intent to retaliate with respect to
forcing Plaintiff from the Building 3’s respite area and denying Plaintiff’s request to go to
another respite area on August 8, 2024. Plaintiff does not identify any specific complaints or
grievances brought against Sgt. Tiamiyu before August 8, 2024. Other than alleging a
possible temporal sequence in connection with the filing of complaints, grievances, or a
lawsuit in general, Plaintiff offers no nonconclusory facts indicating Sgt. Tiamiyu was
motivated by an intent to retaliate in connection with forcing Plaintiff to leave respite on
August 8, 2024.
Plaintiff does allege that Sgt. Tiamiyu and Officer Gbrrjh wrote a disciplinary case
against Plaintiff after requesting her name and after Plaintiff indicated he was in the process
of writing a grievance on Sgt. Tiamiyu for kicking him out of respite and denying his request
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to go to another respite area. (D.E. 15, p. 22). As discussed above, asking for an officer’s
name is not a constitutionally protected activity. See Sanchez, 2016 WL 3981373, at *5.
However, Plaintiff’s allegations reflect that Sgt. Tiamiyu became aware of the grievance
against him just before he filed an allegedly false disciplinary case against Plaintiff. The
undersigned finds that these allegations are sufficient to indicate a chronology of events
from which retaliation can be plausibly inferred as to the filing of the false disciplinary case.
Cf. Armenta, 377 F. App’x at 416.
Accordingly, the undersigned recommends that Plaintiff’s retaliation claim regarding
Sgt. Tiamiyu’s and Officer Gbrrjh’s action in filing a false disciplinary case be retained
against them in their individual capacities. The undersigned further recommends that
Plaintiff’s retaliation claim against Sgt. Tiamiyu in his individual capacity—regarding his
actions on August 8, 2024 in allegedly kicking Plaintiff out of respite and denying his
request to go to another respite area—be dismissed with prejudice as frivolous or for failure
to state a claim for relief.
Alleged Retaliation by Capt. Cavazos, Sgt. Ralphs, and Officer Melchor
Plaintiff claims that Capt. Cavazos, Sgt. Ralphs, and Officer Melchor retaliated
against Plaintiff in early September 2024 for filing complaints by: (1) placing Plaintiff in a
phone-booth sized cage for about seven hours where they denied him access to restrooms
and gave him water once; and (2) writing a false major case for refusing housing. (D.E. 1,
pp. 52-53; D.E. 15, p. 23). Plaintiff alleges the following pertinent facts:
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● on September 3, 2024, an unknown officer allegedly told Plaintiff that he
would be moving to another cell in the 3 Building.
● Plaintiff informed Officer Melchor and Officer Gbrrjh that he was in danger in
the living area and needed to file an OPI/IPI.
● Officer Melchor, Plaintiff says, ordered Plaintiff to go into the multi-purpose
room.
● Plaintiff spoke with Capt. Cavazos and expresses concerns about his safety to
Capt. Cavazos.
● Later that day, Sgt. Ralphs took Officer Melchor’s place and Capt. Wofford
took Capt. Cavazos’s place;
● on September 4, 2024, Plaintiff was escorted from the 3 Building to the 12
Building at 12:15 a.m. by Sgt. Ralphs and locked in a phone booth-sized cage
for about seven hours with no access to a restroom;
● sometime between 2:00 a.m. or 3:00 a.m., Plaintiff received some water;
● neither Officer Melchor, Capt. Cavazos, nor Sgt. Ralphs “informed Plaintiff
that he was not OPI/IPI status and that his failure to move into [Cell 42] would
result in a case”;
● on September 5, 2024, Plaintiff was placed in pre-hearing detention;
● on September 10, 2024, Plaintiff was served a major case for allegedly failing
to move into Cell 42 in the 3 Building; and
● September 11, 2024 – Plaintiff alleges that the this “false major case” was
dismissed because his allegations were substantiated. Id. at 54.
Id.
Plaintiff offers no direct evidence that either Capt. Cavazos, Sgt. Ralphs, or Officer
Melchor intended to retaliate with respect to: (1) placing Plaintiff in respite in a small age for
seven hours with no access to restrooms and limited access to water; and/or (2) bringing a
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false disciplinary case against Plaintiff. The fact these defendants may have led Plaintiff to
believe he was in OPI/IPI status does not constitute direct evidence that they intended to later
retaliate against Plaintiff with a false disciplinary case for refusing housing. While generally
referencing the filing of complaints and lawsuits during the summers of 2023 and 2024,
Plaintiff does not identify any specific complaints or grievances brought against these
defendants or any specific facts to suggest they were acting with knowledge of Plaintiff’s
prior complaints and lawsuits. Other than alleging a possible temporal sequence in
connection with the filing of complaints, grievances, or a lawsuit in general, Plaintiff offers
no nonconclusory facts indicating that either Capt. Cavazos, Sgt. Ralphs, or Officer Melchor
were motivated by an intent to retaliate in connection with his placement in small cage or
subsequent filing of a disciplinary case.
Plaintiff further fails to plausibly allege any facts indicating causation – that is, his
placement in a small cage and subsequent filing of a false disciplinary case would not have
occurred had he not sought to file grievances or petition the government. Plaintiff’s
conclusory allegations again reflect only his belief that he was the victim of retaliation in this
instance, which is insufficient to support a claim for retaliation. Epley, 2023 WL 2483502,
at *14.
Accordingly, the undersigned recommends that the district court dismiss with
prejudice this First Amendment retaliation claim—involving his placement in a small cage
and subsequent filing of a false disciplinary case in early September 2024—as frivolous or
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for failure to state a claim for relief against Capt. Cavazos, Sgt. Ralphs, or Officer Melchor
in their individual capacities.
Failure to Prevent Retaliation by Subordinate Employees
Plaintiff claims that Warden Amonett, Assistant Warden Samaniego, and Assistant
Warden Flannell failed to prevent the retaliatory acts committed by subordinate employees.
(D.E. 1, p. 60; D.E. 15, p. 24). Plaintiff states that these defendants knew about the
retaliatory acts—consisting of denying Plaintiff requested heat mitigation measures and
bringing false disciplinary cases against Plaintiff—but did nothing to deter them. (D.E. 15,
p. 24). Plaintiff acknowledges that these defendants dismissed some of the alleged false
disciplinary cases brought against Plaintiff but generally did nothing to prevent the
retaliatory conduct of the subordinate officials. Id.
As discussed above, “[p]ersonal involvement is an essential element of a civil rights
cause of action.” Thompson, 709 F.2d at 382. There is no vicarious or respondeat superior
liability of supervisors under § 1983. Thompkins, 828 F.2d at 303-04 (5th Cir. 1987); see
also Carnaby, 636 F.3d at 189 (the acts of subordinates do not trigger individual § 1983
liability for supervisory officials); see also Iqbal, 556 U.S. at 677 (“Each Government
official, his or her title notwithstanding, is only liable for his or her own misconduct.”).
Supervisory officials may be held liable only if “(1) he [or she] affirmatively
participates in the acts that cause the constitutional deprivation, or (2) he [or she] implements
unconstitutional policies that causally result in the constitutional injury.” Porter, 659 F.3d at
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446. However, “[m]ere knowledge and acquiescence on a supervisor’s part is insufficient to
create supervisory liability under § 1983.” Doe v. Bailey, No. H-14-2985, 2015 WL
5737666, at *9 (S.D. Tex. Sep. 30, 2015) (citing Iqbal, 556 U.S. at 677).
Here, Plaintiff alleges no specific facts to indicate that either Warden Amonett,
Assistant Warden Samaniego, or Assistant Warden Flannell had sufficient personal
involvement in connection with the alleged retaliatory acts taken against Plaintiff. Accepting
Plaintiff’s allegations as true, the undersigned recognizes Plaintiff’s allegations that these
defendants were aware of the facts giving rise to Plaintiff’s retaliation claims. However,
Plaintiff’s conclusory allegations are insufficient to suggest that either Warden Amonett,
Assistant Warden Samaniego, or Assistant Warden Flannell engaged in any behavior
sufficient to create supervisory liability against them in their individual capacities.
Additionally, to the extent Plaintiff complains about the role of these defendants in the
grievance process addressing Plaintiff’s retaliation complaints, such claims are not
actionable conduct under § 1983. See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir.
2005) (holding that, because inmates have no constitutionally protected liberty interest in
having grievances resolved to their satisfaction, there is no due process violation when prison
officials fail to do so).
Accordingly, the undersigned recommends that the district court dismiss with
prejudice as frivolous or for failure to state a claim for relief against Plaintiff’s claims—for
failure to prevent retaliatory acts committed by subordinate employees—against Warden
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Amonett, Assistant Warden Samaniego, and Assistant Warden Flannell in their individual
supervisory capacities.
5. First Amendment (Denial of Access to the Courts)
Plaintiff claims that unknown correctional officers denied Plaintiff’s First Amendment
right to access the courts when they, on July 11, 2023, confiscated and destroyed the legal
work product contained in his notebook. (D.E. 15, pp. 16, 19). Plaintiff alleges the
following pertinent facts as to this claim:
● since June 4, 2023, Plaintiff wrote in his notebook legal work product,
including the facts, dates and times, incidents, and locations of alleged
misconduct and/or civil rights violations committed by McConnell Unit
officials;
● the notebook was full of information regarding incidents relevant to his
lawsuit;
● on July 11, 2023 at about 6:15 p.m., he received his property back from an
officer at the desk; and
● however, when he went through his returned property, Plaintiff allegedly
noticed that his mini-notebook was missing;
● the notebook was ultimately confiscated and destroyed by unknown
correctional officers; and
● the taking of his notebook prevented Plaintiff from raising claims of
retaliation, freedom of expression, freedom of speech, deliberate indifference,
conditions of confinement, equal protection, and ADA/RA;
(D.E. 1, pp. 39, 59; D.E. 15, pp. 16, 19-20).
Prisoners have a First Amendment right of access to the courts. Bounds v. Smith, 430
U.S. 817, 821 (1977). The Supreme Court has not extended that right beyond the ability to
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prepare and transmit a necessary legal document to a court. See Brewer v. Wilkinson, 3 F.3d
816, 821 (5th Cir. 1993).
To plausibly allege a First Amendment violation for denial of access to the courts, a
plaintiff must show an actual injury. See Lewis v. Casey, 518 U.S. 343, 351 (1996). This
means that Plaintiff “must demonstrate a relevant, actual injury stemming from the
defendant’s unconstitutional conduct.” Adams v. Lumpkin, No. H-21-01088, 2022 WL
425978, at *2 (S.D. Tex. Feb. 3, 2022) (Hanen, J.) (citing Brewster v. Dretke, 587 F.3d 764,
769 (5th Cir. 2009)). “In particular, an inmate must ‘demonstrate that a nonfrivolous legal
claim has been frustrated or was being impeded.’” Id. (quoting Lewis, 518 U.S. at 353 &
n.3).
Here, Plaintiff does not allege any nonconclusory facts to indicate that this case (or
any other case) was impeded or hindered in any way by virtue of the alleged confiscation of
the notebook. He does not allege that he has been unable to file any nonfrivolous claim, that
this or any other case was prejudiced or hampered, or that he suffered any sanction. While
stating that he has not been able to raise several types of legal claims, he does not detail any
specific legal claims he was unable to present due to the taking of his notebook. His
pleadings instead reflect an ability to raise numerous types of legal claims such as retaliation,
freedom of expression, deliberate indifference, conditions of confinement, due process, equal
protection, and ADA/RA. Plaintiff does not explain how any additional claims have been
hampered by the alleged taking and destruction of the notebook. He likewise offers no
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suggestion that any of the facts recorded in the notebook were material to any claim, or that
he has forgotten any of those facts.
Moreover, Plaintiff’s pleadings already contains a significant level of detail regarding
many of his claims – specific events, names, and dates (even including specific times of day
when most of those events allegedly occurred). While any facts supposedly forgotten due to
the notebook’s confiscation might perhaps have added a name or a date to the claims that
Plaintiff has alleged here, Plaintiff offers nothing beyond speculation that he has suffered any
“actual injury” to any of his claims. Cf. Breshears v. Brown, 150 F. App’x 323, 325-26 (5th
Cir. 2005) (per curiam). Plaintiff therefore cannot state a plausible access-to-courts claim.
Cf. Adams, 2022 WL 425978, at *2-*5; see also Cox v. Biscoe, 477 F. App’x 225, 227 (5th
Cir. 2012) (unpublished) (holding that a § 1983 plaintiff failed to present sufficient facts that,
if true, would show that he suffered any actual injury, as is required to state a denial-of-
access claim).
Accordingly, the undersigned recommends that the district court deny Plaintiff’s First
Amendment denial-of-access-to-courts claim against unknown correctional officers in their
individual activities as frivolous or for failure to state a claim for relief.
6. Fourteenth Amendment (Due Process)
Plaintiff claims that Substitute Counsel Gonzales and unknown officers violated
Plaintiff’s Fourteenth Amendment due process rights by failing to call Plaintiff to attend an
August 18, 2023 disciplinary hearing, failing to present a defense for Plaintiff at the hearing
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by calling witnesses on his own behalf, intentionally denying him an effective substitute
counsel, and not providing him with a written disposition. (D.E. 1, pp. 61-62; D.E. 15, pp.
25-26). Plaintiff alleges the following pertinent facts:
● on July 30, 2023, Plaintiff wrote a false major case against Plaintiff;
● the case was fraudulently written by Sgt. Ramirez, stating that Plaintiff had
called her by her name and asked her what she likes to do for fun;
● Counsel Substitute Gonzales was appointed to represent Plaintiff at the
disciplinary hearing;
● Counsel Substitute Gonzales served the case on Plaintiff on August 1, 2023;
● Plaintiff requested to attend the disciplinary hearing, pled not guilty, and asked
to call witnesses;
● Counsel Substitute Gonzales failed to do the following as required:
“investigate facts, call witnesses, ensure that Plaintiff was allowed to attend
the hearing, and to defend Plaintiff at the hearing”;
● Counsel Substitute Gonzalez laughed at Plaintiff and then “threw the case on
Plaintiff;
● on August 22, 2023, Major Quiroga of the Unit Classification Committee
(“UCC”) informed Plaintiff that a disciplinary hearing had been held on
August 18, 2023;
● Plaintiff never had an opportunity to attend this hearing, argue in his favor, or
present evidence;
● Major Quiroga changed Plaintiff’s custody status to G4 housing, which was
more restrictive and more violent;
● Plaintiff further believes that, as a result of the August 18, 2023 hearing, he
was sanctioned with commissary, recreation, and cell restrictions; and
● due to the guilty verdict and punishments, Plaintiff was prevented from
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attending college, placed in waiting for a unit transfer, subjected to a false
disciplinary record, and hindered in his ability to gain parole eligibility.
(D.E. 1, pp. 42-43, 61-62; D.E. 15, pp. 21, 24-26).
Plaintiff’s due process claims against Counsel Substitute Gonzales and unknown
officials challenge the constitutionality of his August 18, 2023 disciplinary hearing and
resulting sanctions. To establish a due process violation in connection with the disciplinary
process and resulting punishments, a prisoner must establish a liberty interest which was
implicated or infringed by a prison action. Richardson v. Joslin, 501 F.3d 415, 418 (5th Cir.
2007). Liberty interests protected by the Fourteenth Amendment's Due Process Clause are
generally limited to: freedom from restraints which impose an atypical and significant
hardship on an inmate in relation to the ordinary incidents of prisoner life; or those
punishments that extend the length or duration of confinement. Lopez v. Davis, No.
6:19cv593, 2020 WL 6935560, at *2 (E.D. Tex. Oct. 7, 2020), adopted 2020 WL 888993
(E.D. Tex. Nov. 24, 2020) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Because Plaintiff has no liberty interest in his custodial classification, however, his
change in custodial housing to G4 and related placement in more restrictive housing
generally does not implicate a constitutionally cognizable liberty interest. Luken v. Scott, 71
F.3d 192, 193 (5th Cir. 1995); Lopez, 2020 WL 6935560, at *2; see also Wilkinson v. Austin,
545 U.S. 209, 221 (2005) (“[T]he Constitution itself does not give rise of a liberty interest in
avoiding transfer to more adverse conditions of confinement.”); Sandin, 515 U.S. at 486
(explaining that a plaintiff’s “discipline in segregated confinement did not present the type of
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atypical, significant deprivations in which a State might conceivably create a liberty
interest”). Plaintiff alleges no facts to suggest that any prison official at the McConnell Unit,
much less either Counsel Substitute Gonzales or other unknown officials, altered his
custodial situation in a way to impose an atypical and significant hardship on him in relation
to the ordinary incidents of prisoner life. Sandin, 515 U.S. at 484; see also Barton v.
Buckner, No. SA-18-CA-119-OG, 2018 WL 6069170, at *3 (W.D. Tex. Nov. 20, 2018) (a
prisoner’s classification and housing assignment are committed to the discretion of the prison
authorities and such classification decisions are not subject to due process challenges).
It is only when a prisoner demonstrates “extraordinary circumstances” may he
maintain a due process challenge to a change in his custodial classification. Id. Cases where
segregated confinement is sufficiently atypical to implicate a due process liberty interest
involve circumstances much harsher than those presented by Plaintiff. In Sandin, the
Supreme Court cited examples of prison hardships that would qualify as so atypical and
significant as to implicate due process considerations, including the unwanted administration
of anti-psychotic drugs, the involuntary commitment to a mental hospital, and extension of
the prisoner’s sentence for his underlying criminal conviction. See Sandin, 515 U.S. at 484.
Additionally, the Supreme Court has held that solitary confinement in a “Supermax” facility
imposes an atypical and significant hardship that creates a liberty interest in avoiding such a
placement when all of the following factors are taken together: almost all human contact,
including cell to cell conversation, is prohibited; the light is on for 24 hours per day; exercise
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is limited to one hour per day, but only in a small indoor room; the placement in isolation is
indefinite and is reviewed annually; and the placement disqualifies an otherwise eligible
inmate from parole consideration. Wilkinson, 545 U.S. at 223-24.
The extreme conditions cited by Sandin and present in Wilkinson are readily
distinguishable from the present facts. Plaintiff provides no allegations showing that the
conditions of his confinement in restrictive custody for a brief amount of time in the summer
of 2023 were particularly harsh. The fact that Plaintiff disagrees with that custodial
assignment falls well short of stating a constitutional violation.
Further, Plaintiff's allegations suggesting that false information was used or
sanctioned by prison officials to secure Plaintiff’s disciplinary convictions following the
August 18, 2023 hearing also fail to implicate a due process concern. See Luken, 71 F.3d
192, 193 (5th Cir. 1995) (placement in administrative segregation, even when it is based on
false information, does not implicate a liberty interest); Estrada v. Nehls, 524 F. Supp. 3d
578, 589-90 (S.D. Tex. 2021) (Hanen, J.) (same); Lopez, 2020 WL 6935560, at *2 (“An
inmate does not have a right to have false information removed from his prison record[,] and
placement in administrative segregation based on allegedly false information does not
constitute a deprivation of a constitutionally cognizable liberty interest.”); Reagan v. Burns,
No. 3:16-CV-2590-G-BH, 2019 WL 6733023, at *10 (N.D. Tex. Oct. 30, 2019), adopted
2019 WL 6729085 (N.D. Tex. Dec. 10, 2019) (a claim that a disciplinary charge was false,
standing alone, does not state a implicate a liberty interest).
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Plaintiff otherwise provides no specific facts to suggest that his resulting punishment
have potentially extended the length or duration of his confinement such as through the loss
of good-conduct time. Even assuming that Plaintiff was subjected to the loss of good-time
conduct or other punishment interfering with his sentence and release, he is not entitled to
relief. The Supreme Court has held that “in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been [overturned].” Heck v. Humphrey, 512 U.S. 477,
486-87 (1994).
The Fifth Circuit has explained that “[i]t is well-settled under Heck that a plaintiff
who has been convicted of a crime cannot recover damages for an alleged violation of his
constitutional rights if that ‘violation arose from the same facts attendant to the charge for
which he was convicted ....’” Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008) (quoting
Heck, 512 U.S. at 486-87). The Heck doctrine also operates to bar prisoners from seeking
injunctive relief or otherwise challenging the punishment imposed by a disciplinary
proceeding through a § 1983 action. See Edwards v. Balisok, 520 U.S. 641, 648 (1997)
(“[plaintiff’s] claim for declaratory relief and money damages, based on allegations ... that
necessarily imply the invalidity of the punishment imposed, is not cognizable under §
1983”); Clarke v. Stalder, 154 F.3d 186, 189-91 (5th Cir. 1998) (en banc) (applying Heck to
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bar plaintiff’s constitutional claims for injunctive relief that were fundamentally intertwined
with his request for restoration of good-time credits).
Plaintiff's allegations, accepted as true, fail to reflect that his August 18, 2023
disciplinary conviction, even if based on false statements that may have been placed into the
record, were overturned by any grievance appeal or set aside by any court. Because Plaintiff
has not successfully had this particular disciplinary conviction set aside, he cannot seek relief
with respect to his due process claims challenging this disciplinary conviction. See Hughes
v. Mathis, No. 6:20-CV-19, 2020 WL 13111142, at *7 (S.D. Tex. Oct. 6, 2020) (Libby,
M.J.), adopted, 2022 WL 473743 (S.D. Tex. Feb. 15, 2022).
Furthermore, Plaintiff’s due process claims challenging his August 18, 2023
disciplinary conviction and related punishment are subject to dismissal for the following
reasons. Punishment consisting of commissary, recreation, and cell restrictions is not
enough to trigger due process protections. See Antone v. Preschel, 347 F. App’x 45, 46 (5th
Cir. 2009) (unpublished); Gaona v. Erwin, 224 F. App’x 327, 328 (5th Cir. 2007); see also
Malchi v. Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000) (“Clearly, Malchi’s thirty-day loss of
commissary privileges and cell restrictions do not implicate due process concerns.”);
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (“We agree that Madison’s 30[-]day
commissary and cell restrictions as punishment are in fact merely changes in the conditions
of confinement and do not implicate due process concerns.”).
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Plaintiff indicates that the August 18, 2023 disciplinary conviction adversely impacted
his eligibility for parole. However, it is well-settled that a state prisoner does not have a
federal constitutional right to early release on parole. See Greenholtz v. Inmates of Neb.
Penaland Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right
of a convicted person to be conditionally released before the expiration of a valid
sentence.”); Orellena v. Kyle, 65 F.3d 29, 31-32 (1995); Pohl v. Livingston, 241 F. App’x
180, 181 (5th Cir. 2007) (“This court has determined that Texas law does not create a liberty
interest in parole that is protected by the Due Process Clause.”). Fifth Circuit law, therefore,
is clear that Plaintiff has no constitutional liberty interest in parole that would trigger a right
to due process. See Toney v. Owens, 779 F.3d 330, 341-42 (5th Cir. 2015) (stating that the
court has consistently held that Texas prisoners cannot mount a challenge against any state
parole review procedure on procedural due process grounds); Johnson, 110 F.3d at 308
(“[B]ecause Texas prisoners have no protected liberty interest in parole they cannot mount a
challenge against any state parole review procedure on procedural (or substantive) Due
Process grounds.”).
Lastly, Plaintiff fails to establish a liberty interest based on any failure to follow TDCJ
administrative rules “concerning the procedural steps that must be followed when lodging a
major case infraction against a resident and then imposing punishments.” (D.E. 15, p. 26).
“The mere allegation that prison policies were not followed does not state a claim.”
Coleman v. Carrieon, No. 2:13-CV-0116, 2015 WL 845836, at *7 (N.D. Tex. Feb. 26, 2015)
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(citing Myers, 97 F.3d at 94) (TDCJ–CID's failure to follow its own administrative rules and
regulations does not raise federal constitutional issues as long as minimal constitutional
requirements are met)).
For the foregoing reasons, the undersigned recommends that the district court dismiss
with prejudice as frivolous or fore failure to state a claim for relief Plaintiff’s Fourteenth
Amendment due process claims against Counsel Substitute Gonzales and unknown officers
in their individual capacities.
7. Fourteenth Amendment (Equal Protection)
The Equal Protection Clause of the Fourteenth Amendment “commands that no State
shall deny to any person within its jurisdiction the equal protection of the laws, which is
essentially a direction that all persons similarly situated should be treated alike.” Duarte v.
City of Lewisville, Tex., 858 F.3d 348, 353 (5th Cir. 2017) (internal quotation marks and
citations omitted); Wood v. Collier, 836 F.3d 534, 538 (5th Cir. 2016).
To establish an equal protection violation, a plaintiff must prove “purposeful
discrimination resulting in a discriminatory effect among persons similarly situated.” Butts
v. Martin, 877 F.3d 571, 590 (5th Cir. 2017) (internal quotation marks and citation omitted);
Baranowski v. Hart, 486 F.3d 112, 123 (5th Cir. 2007). A plaintiff must first demonstrate
that “two or more classifications of similarly situated persons were treated differently.”
Duarte, 858 F.3d at 353 (internal quotation marks and citations omitted). If a suspect class
(such as race, ethnicity, or national origin) or a fundamental right is implicated, the courts
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apply “strict scrutiny.” Id. at 353-54. If not, the courts apply “rational basis review” and will
uphold the classification if it bears a “rational relation to a legitimate governmental purpose.”
Id. at 354. The Equal Protection Clause “does not require that all persons be dealt with
identically, but it does require that a distinction made have some relevance to the purpose for
which the classification is made.” Wood, 836 F.3d at 538-39 (internal quotation marks and
citation omitted).
Under a “class of one” equal protection claim, a plaintiff alleges differential treatment
that is not based on membership in a suspect class or on the infringement of a fundamental
right. See Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 594 (2008); Wood, 836 F.3d at 539.
Such a claim requires the plaintiff to show that “(1) he or she was intentionally treated
differently from others similarly situated and (2) there was no rational basis for the
difference in treatment.” Wood, 836 F.3d at 539 (internal quotation marks and citation
omitted). The plaintiff must show “that the defendant deliberately sought to deprive him of
the equal protection of the laws for reasons of a personal nature unrelated to the duties of the
defendant's position.” Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir. 2000), overruled on
other grounds, McClendon v. City of Columbia, 305 F.3d 314, 328–29 (5th Cir. 2002)).
“‘[I]f the challenged government action does not appear to classify or distinguish between
two or more relevant persons or groups, then the action—even if irrational—does not deny
them equal protection of the laws.’” Little v. Tex. Attorney Gen., No. 3:14-CV-3089-D, 2015
WL 5613321 at *6 (N.D. Tex. Sept. 24, 2015) (quoting Johnson, 110 F.3d at 306).
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Unequal Treatment in Disciplinary Proceedings
Plaintiff claims that unknown rank officers violated Plaintiff’s right to equal treatment
in connection with the August 2023 disciplinary proceedings, including the August 18, 2023
disciplinary hearing, because every other inmate was given a disciplinary hearing “afforded
the protections of due course of law and, due process and, the procedural guidelines outlined
in the TDCJ policy for major code hearing disciplinary procedures.” (D.E. 1, p. 62).
Here, Plaintiff fails to allege any specific facts identifying himself as a member of a
suspect class or showing that a fundamental right had been implicated. See Duarte, 858 F.3d
at 853-54. His allegations, accepted as true, at most attempt to state a “class of one” equal
protection claim, requiring the Court to apply a “rational basis review” rather than a strict
scrutiny analysis to his equal protection claims. See Wood, 836 F.3d at 539.
Plaintiff’s liberally construed “class of one” equal protection claims against unknown
rank officials should be dismissed as conclusory and threadbare. See Iqbal, 556 U.S. at 678
(internal citation omitted) (“Threadbare recitals of the elements of a cause of action,
supported by conclusory statements, do not suffice.”); Pedraza v. Meyer, 919 F.2d 317, 318
n.1 (5th Cir.1990) (vague and conclusory allegations that equal protection rights have been
violated are insufficient to raise an equal protection claim). Plaintiff provides no allegations
detailing specific actions that any rank official at the McConnell Unit took in singling out
Plaintiff from among similarly-situated inmates. While Plaintiff indicates he was treated
differently than all other inmates, his allegations fail to identify a similarly-situated inmate
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with his custodial classification and similar disciplinary history facing a major disciplinary
case who was treated more favorably. His allegations further are devoid of any specific,
non-conclusory allegations that any rank officer engaged in purposeful discrimination which
had “a discriminatory effect among persons similarly situated.” Butts, 877 F.3d at 590.
Accordingly, the district court should dismiss Plaintiff’s Fourteenth Amendment
equal protection claim in connection with the August 2023 disciplinary proceeding as
frivolous or for failure to state a claim for relief against unknown rank officials in their
individual capacities.
Unequal Treatment in Receiving Heat-Mitigation Measures
Liberally construed, Plaintiff claims that his equal protection rights were violated
when:
● between June 25 and July 11, 2023, unknown correctional officers allowed
other inmates unrestricted access to medical screening and respite while he
was denied same (D.E. 1, p. 38); and
● throughout the summers of 2023 and 2024, unknown correctional officers
allowed other non-restricted inmates for respite, cool showers, and ice water
but not Plaintiff (D.E. 15, p. 17).
Here, Plaintiff also fails to allege any specific facts identifying himself as a member
of a suspect class or showing that a fundamental right had been implicated. See Duarte, 858
F.3d at 853-54. His allegations, accepted as true, at most attempt to state a “class of one”
equal protection claim, requiring the Court to apply a “rational basis review” rather than a
strict scrutiny analysis to his equal protection claims. See Wood, 836 F.3d at 539.
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Plaintiff’s liberally construed “class of one” equal protection claims against unknown
rank officials should be dismissed as conclusory and threadbare. See Iqbal, 556 U.S. at 678;
Pedraza, 919 F.2d at 318 n.1. Plaintiff provides no allegations detailing specific actions that
any unknown correctional officer took in singling out Plaintiff from among similarly-situated
inmates. While Plaintiff indicates he was treated differently than some other inmates seeking
heat-mitigations measures, his threadbare allegations fail to identify specific incidents where
a similarly-situated inmate with heat restrictions and heat-related medical issues who was
treated more favorably. His allegations further are devoid of any specific, non-conclusory
allegations that any correctional officer engaged in purposeful discrimination which had “a
discriminatory effect among persons similarly situated.” Butts, 877 F.3d at 590.
Accordingly, the district court should dismiss Plaintiff’s Fourteenth Amendment
equal protection claims against unknown correctional officers in their individual capacities in
connection with their actions denying Plaintiff access to certain heat-mitigation measures
during the summers of 2023 and 2024.
B. ADA and RA Claims
The ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. Similarly, under the RA, “[n]o qualified individual with a
disability . . . shall, solely by reason of her or his such disability, be excluded from
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participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
“The RA is operationally identical to the ADA in that both statutes prohibit
discrimination against disabled persons; however, the ADA applies only to public entities
while the RA applies to any federally funded programs or activities, whether public or
private.” Borum v. Swisher Cnty., No. 2:14-CV-127-J, 2015 WL 327508, at *3 (N.D. Tex.
Jan. 26, 2015) (citing Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010)). Courts utilize the
same standards in analyzing claims under both the ADA and RA. See Frame v. City of
Arlington, 657 F.3d 215, 223-24 (5th Cir. 2011). Therefore, the undersigned analyzes
Plaintiff’s ADA and RA claims together. See Cadena v. El Paso Cnty., 946 F.3d 717, 723
(5th Cir. 2020).
To establish a valid ADA claim, a plaintiff must show that (1) he has a qualifying
disability; (2) he is being denied the benefits of services, programs, or activities for which
the public entity is responsible, or is otherwise discriminated against by the public entity; and
(3) such discrimination is by reason of his disability. Miraglia v. Bd. of Supervisors of La.
State Museum, 901 F.3d 565, 574 (5th Cir. 2018). A qualifying disability is a “physical or
mental impairment that substantially limits one or more major life activities.” 42 U.S.C. §
12102(1)(A). The definition of “disability” is to be given broad construction. See id. §
12102(4)(A).
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To “prevail on a Rehabilitation Act claim, the plaintiff must ultimately prove that the
defendant discriminated against him or her solely on the basis of disability.” Taylor v. City
of Shreveport, 798 F.3d 276, 284 (5th Cir. 2015) (emphasis in original); see also Davidson v.
Tex. Dep’t of Criminal Justice, Inst. Div., 91 F. App’x 963, 965 (5th Cir. 2004) (per curiam)
(applying similar standard for ADA claim). To recover money damages, more is required:
Plaintiff must also show that the discrimination was intentional. Miraglia, 901 F.3d at 574.
Under the ADA, discrimination effectively means failure to provide a reasonable
accommodation to the needs of the disabled person. Melton v. Dallas Area Rapid Transit,
391 F.3d 669, 672 (5th Cir. 2004). The Fifth Circuit has held that a prison’s failure to satisfy
the reasonable accommodation requirement may constitute a denial of services or benefits as
well as intentional discrimination sufficient to satisfy the second and third prongs of the Title
II ADA inquiry. Garrett v. Thaler, 560 F. App’x 375, 382 (5th Cir. 2014). “To succeed on a
failure-to-accommodate claim, a plaintiff must prove: (1) he is a qualified individual with a
disability; (2) the disability and its consequential limitations were known by the covered
entity; and (3) the entity failed to make reasonable accommodations.” Ball, 792 F.3d at 596
n.9.
In the prison context, failure to make reasonable accommodations to the needs of a
disabled prisoner may have the effect of discriminating against that prisoner because the lack
of accommodation may cause the disabled prisoner to suffer more pain and punishment than
non-disabled prisoners. See United States v. Georgia, 546 U.S. 151, 160 (2006) (recognizing
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prisoner’s allegations that defendant refused to provide a reasonable accommodation to a
paraplegic inmate, “in such fundamentals as mobility, hygiene, [and] medical care,” resulted
in the disabled inmate suffering serious punishment “without penal justification” and
supported claims under the ADA and RA).
Plaintiff claims that each of the named defendants (sued in their individual and
official capacities) violated his ADA and RA rights in connection with the excessive heat
conditions during the summers of 2023 and 2024. A plaintiff, however, cannot sue
defendants in their individual capacities under either the ADA or RA. See Lollar v. Baker,
196 F.3d 603, 609 (5th Cir. 1999); Nottingham v. Richardson, 499 F. App’x 368, 376 n.6
(5th Cir. 2012); Roberts v. Cooper, No. 6:22cv102, 2022 WL 2442798, at *4 (E.D. Tex. Apr.
29, 2022), adopted, 2022 WL 2440776 (E.D. Tex. Jul 5, 2022); Payne v. Sutterfield, No.
2:18-CV-084, 2021 WL 3173902, at *3 (N.D. Tex. Jul. 27, 2021). Accordingly, the
undersigned recommends that Plaintiff’s ADA and RA claims against each named defendant
in his or her individual capacities be dismissed with prejudice as frivolous and for failure to
state a claim for relief.
The ADA does not “itself prohibit suits against both the State and its agencies.”
Patrick v. Martin, No. 2:16-CV-216, 2018 WL 3966349, at *5 (N.D. Tex. Jun. 29, 2018),
adopted, 2018 WL 3956484 (N.D. Tex. Aug. 17, 2018) (citing 42 U.S.C. § 12131(1)(a)-(b)).
The Fifth Circuit further has held that state officers sued in their official capacities are proper
defendants in suits brought under the ADA. See McCarthy ex rel. Travis v. Hawkins, 381
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F.3d 407, 412-14 (5th Cir. 2004) (“Defendants have been sued in their official capacities and
are therefore representing their respective state agencies (which are proper Title II
defendants) for all purposes except the Eleventh Amendment.”).
Plaintiff alleges the following pertinent facts with respect to his ADA and RA claims:
● Plaintiff has been placed on the Heat Restriction List at all relevant times.
(D.E. 1, p. 62).
● According to Plaintiff, Regional Director Holmes, Warden Amonett, Assistant
Warden Samaniego, Assistant Warden Flannell, other ranking officers, and
other correctional officers knew through their training that Plaintiff was
susceptible to excessive heat. Id. at 63.
● Plaintiff indicates that his various medical and mental health conditions have
resulted in disabilities that “restrict his ability to thermoregulate properly,
engage in work, exercise, sleep, communicate, be social, and the ability to live
a normal life.” Id.
● Plaintiff affirms that the excessive heat conditions are more dangerous to him
and that the conditions cause him to suffer “palpitations, tachycardia,
bradycardia, chest pains, difficulty breathing[,]” hallucinations, anxiety,
depression, and difficulty sleeping in a hot environment ” Id. at 63-64.
● Plaintiff asserts that his heat intolerance is open, obvious, and apparent,
especially as reflected by him being on the Heat Restriction List. Id. at 64.
● As alleged above, Plaintiff states that Defendants have failed to provide him
with appropriate heat mitigation measures under AD-10.64, including not
having appropriate staffing levels as well as failing to provide cups, ice water,
respite, cool showers, medical screening, and wellness checks. (D.E. 15, p.
27).
● Plaintiff further states that AD-10.64 is known by Defendants “to be
ineffective in preventing heat illness and stroke even for a healthy individual.”
Id.
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● Plaintiff explains that, throughout the 2023 and 2024 summers, he requested
“cool bed housing” as well as a pass from “medical and mental health” not to
be denied respite, ice water, cool showers, and medical screenings. (D.E. 1, p.
64; D.E. 15, p. 28).
● Between June and August 2023, Plaintiff explained his disabilities to Assistant
Warden Samaniego, Assistant Warden Flannell, Maj. Masters, Capt. Cavazos,
and Captain Herbst and requested from them “cool bed housing or a pass.”
(D.E. 15, p. 28).
● Plaintiff further explained to these officials that he was being denied respite
and other remedial measures under AD-10.64. Id.
● Plaintiff wrote: (1) an I-60 to Regional Director Holmes, Warden Amonett,
Assistant Warden Flannell, and Law Librarian Thompson throughout the
summers of 2023 and 2024, with regard to effect of the excessive heat on his
disabilities and limitations; and (2) grievances throughout the summer of 2023
and 2024, where he explained his disabilities complained about being denied
heat mitigation measures under AD-10.64, and requested cool bed housing.
(D.E. 1, p. 65; D.E. 15, p. 28).
Plaintiff’s ADA and RA claims assert a failure to provide him, a disabled individual,
with reasonable accommodations for the excessive heat conditions occurring in the summers
of 2023 and 2024. Construing his pleadings liberally and accepting Plaintiff’s allegations as
true, the undersigned finds that Plaintiff sufficiently shows that he suffers from physical
impairments that greatly limit his daily life activities, and that, at least for purposes of this
screening, he is a “qualified individual with a disability.” See Peña Arita v. Cnty. of Starr,
Tex., No. 7:19-CV-00288, 2020 WL 5505929, at *5 (S.D. Tex. Sept. 11, 2020) (Alvarez, J.)
(in evaluating a motion to dismiss, the court explains that it cannot say definitely whether the
individual suffered a disability, but that the court’s role is to “interpret Plaintiffs’ complaint
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as a whole and grant Plaintiffs every reasonable inference to determine whether Plaintiffs
state a plausible claim for relief”).
The undersigned accepts, for purposes of screening only, that Plaintiff has sufficiently
alleged that the excessive heat conditions present in the summers of 2023 and 2024 are more
onerous on him because of his particular alleged disabilities. Plaintiff’s allegations further
reflect that he was consistently denied access to appropriate heat mitigation measures
mandated by AD-10.64 during this timeframe, including access to air-conditioned respite,
cups, ice water, cool showers, medical screening, and wellness checks. Plaintiff’s
allegations suggest that the lack of such accommodations caused him to suffer more pain and
punishment than non-disabled prisoners.
At this early stage in the proceedings, the undersigned concludes that these allegations
are sufficient to survive screening against some but all of the named defendants in their
official capacities. Plaintiff specifically details in his More Definite Statement the following
defendants as being aware of his disabilities, limitations, and requests for air-conditioned
housing during the relevant time frame: Regional Director Holmes, Warden Amonett,
Assistant Warden Samaniego, Assistant Warden Flannell, Maj. Masters, Capt. Cavazos,
Captain Herbst, and Law Library Thompson. (D.E. 15, p. 28). Accordingly, the undersigned
recommends that the district court retain Plaintiff’s ADA and RA claims against these
defendants in their official capacities.
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Plaintiff otherwise has failed to provide non-conclusory allegations sufficient to state
ADA and RA claims against any of the remaining named defendants. See Iqbal, 556 U.S. at
678; Twombly, 550 U.S. at 556. Accordingly, the undersigned recommends that Plaintiff’s
ADA and RA claims be dismissed with prejudice for failure to state a claim against the
remaining defendants in their official capacities.
C. Claims not specifically addressed in this Memorandum and
Recommendation
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 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, 404 U.S. at 520-21; see also Estelle, 429 U.S. at 106 (pro se parties are
normally accorded more leniency in the construction of their pleadings).
The undersigned has liberally construed Plaintiff’s complaint and his More Definite
Statement to give his claims fair and meaningful consideration. 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 any other claim not specifically addressed by the undersigned in this
memorandum and recommendation, the undersigned has concluded that Plaintiff has failed
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to state such claim with sufficient factual detail or clarity to allow the claim to be identified
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. Plaintiff,
therefore, must allege sufficient facts in support of its legal conclusions that give rise to a
reasonable inference that any 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. Therefore, 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.
D. Leave to Amend
The undersigned is recommending dismissal of some of Plaintiff’s claims. “When the
dismissal of a pro se complaint is appropriate, it should generally be done without prejudice
in order to allow the plaintiff an opportunity to file an amended complaint.” Rodriguez v.
United States, 66 F.3d 95, 97 (5th Cir. 1995). Leave to amend need not be granted if the
amendment would be futile – for example, if an amended complaint would still fail to state a
claim upon which relief may be granted. See Foman v. Davis, 371 U.S. 178, 182 (1962)
(futility of amendment is adequate justification to refuse to grant leave to amend).
“If the prisoner has filed his complaint and submitted questionnaire responses, then
the court may conclude that he has pleaded his best case such that granting him further leave
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to amend would be futile or cause unnecessary delay.” Clark v. Waddell, No. 7:22-cv-
00059-MBP, 2023 WL 8605313, at *18 (N.D. Tex. Nov. 15, 2023) (citing Witherspoon v.
Waybourn, No. 4:20-cv-1150-P, 2021 WL 2635917, at *10 (N.D. Tex. June 25, 2021) and
McLean v. King, No. 3:20-cv-1244-C-BK, 2020 WL 6049297, at *2 (N.D. Tex. Sept. 15,
2020)); see also Mejia v. Monroe, No. H-18-3036, 2021 WL 765726, at *2 (S.D. Tex. Feb.
26, 2021) (Miller, J.) (finding that inmate had pleaded his best case where he was afforded
an opportunity to plead facts supporting his claim through a more definite statement).
Here, Plaintiff has had the opportunity to plead his best case against Defendants with
respect to his claims in that: he has filed a complaint and a More Definite Statement at the
Court’s direction in which he has responded to numerous directives and questions. In
addition, Plaintiff had the opportunity to present many of his claims in a prior lawsuit, which
was ultimately dismissed without prejudice on April 23, 2025. (See Crowley I, D.E. 118).
Where the undersigned has recommended dismissal of a claim with prejudice, therefore, that
dismissal should be without leave to amend because Plaintiff has already pleaded his best
case.
V. RECOMMENDATION
For purposes of screening and for the reasons discussed above, the undersigned
respectfully recommends that the district court RETAIN the following claims:
● Plaintiff’s Eighth Amendment claims related to the implementation of heat
mitigation measures set forth in AD-10.64, the policy or custom of
understaffing each prison unit, and the 24/7 building schedule policy—which
remain ongoing at Plaintiff’s current housing assignment—against TDCJ’s
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current Executive Director Bobby Lumpkin in his official capacity for
declaratory and injunctive relief;
● Plaintiff’s Eighth Amendment deliberate indifference claims of supervisory
liability against Executive Director Collier, Regional Director Holmes, and
Warden Amonett in their individual capacities for putting into place policies
that resulted in inadequate staffing levels at the McConnell Unit during the
summers of 2023 and 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Lt.
Dougherty, Sgt. Hampson, and Sgt. Martinez in their individual capacities for
allegedly denying him respite, a cool shower, and/or medical attention on June
4, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Capt.
Herbst, Lt. Bliedrey, Lt. Dougherty and Sgt. Martinez, and unknown
correctional officers in their individual capacities for allegedly denying him
respite, a cool shower, and/or medical attention on June 18, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Sgt.
Martinez and Officer Chapa in their individual capacities for allegedly denying
him respite and/or access to medical on June 26, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Sgt. J.
Perez in his individual capacity for allegedly denying him respite on July 19,
2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer
Sanchez in his individual capacity for allegedly refusing Plaintiff medical
attention on July 22, 2023, after being sent to medical by another officer;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Sgt.
Ramirez, Officer Sanchez, and an unknown correctional officer in their
individual capacities for allegedly denying him access to respite and medical
attention on July 30, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Sgt.
Austin in his individual capacity for allegedly denying Plaintiff respite on
September 7, 2023, a day that fell during a brutal heart wave and fell on the
first day after Plaintiff was moved from a climate-controlled living area;
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● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer (or
sergeant) Raone in his individual capacity for allegedly denying Plaintiff
respite and a cool shower on September 21, 2023, despite having shown him
his heat restrictions;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Officer
Rangel, Officer Haso, and an unknown captain in their individual capacities
for allegedly denying Plaintiff respite on May 20, 2024;
● Plaintiff’s First Amendment freedom of expression claims against Lt.
Dougherty, Sg. Ralphs, and Sgt. Austin in their individual capacities in
connection with the tearing down and destruction of “need respite” and/or
“need medic” signs on June 4, 2023, June 16, 2023, and June 18, 2023,
respectively;
● Plaintiff’s retaliation claim against Sgt. Ramirez in her individual capacity for
filing a false disciplinary case against Plaintiff on July 30, 2023;
● Plaintiff’s retaliation claim against Officer Oki in her individual capacity for
filing a false disciplinary case against Plaintiff on June 3, 2024;
● Plaintiff’s retaliation claim against Sgt. Tiamiyu’s and Officer Gbrrjh in their
individual capacities for filing a false disciplinary case against Plaintiff on
August 8, 2024; and
● Plaintiff’s failure-to-accommodate claims under the ADA and RA against
Regional Director Holmes, Warden Amonett, Assistant Warden Samaniego,
Assistant Warden Flannell, Maj. Masters, Capt. Cavazos, Captain Herbst, and
Law Library Thompson in their official capacities.
The undersigned will order service separately on these defendants with respect to the claims
retained in this case.
The undersigned recommends further that the district court DISMISS without
prejudice the following claims:
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● Plaintiff’s § 1983 claims for money damages against each named or unknown
defendant sued in his or her official capacity;
● Plaintiff’s Eighth Amendment claims against every named and unknown
defendant in their official capacities (with the exception of Plaintiff’s Eighth
Amendment claim noted above against Executive Director Lumpkin in his
official capacity) for declaratory and injunctive relief; and
● Plaintiff’s First and Fourteenth Amendment claims as moot against every
named and unknown defendant in their official capacities for declaratory and
injunctive relief;
The undersigned recommends further that the district court DISMISS with prejudice
as frivolous or for failure to state a claim for relief the following claims:
● Plaintiff’s Eighth Amendment claims of supervisory liability—based on
failure to train or supervise subordinate staff as well as allowing subordinate
staff to deviate from AD-10.64 policies—against Regional Director Holmes,
Warden Amonett, Assistant Warden Samaniego, Assistant Warden Flannel,
Capt. Cavazos, Capt. Herbst, and Capt. Wilkens in their individual capacities;
● Plaintiff’s Eighth Amendment deliberate indifference claim—based on putting
into place policies that resulted in inadequate staffing levels at the McConnell
Unit during the summers of 2023 and 2024—against Assistant Warden
Samaniego and Assistant Warden Flannell in their individual capacities;
● Plaintiff’s Eighth Amendment deliberate indifference claim—based on failing
to provide cups and/or water (as well as denying access to the bathroom) while
Plaintiff attended the McConnell Unit law library—against Law Librarian
Thompson, Warden Amonett; Assistant Warden Samaniego; Assistant Warden
Flannel, and Capt. Cavazos, and unknown officers in their individual
capacities;
● Plaintiff’s Eighth Amendment deliberate indifference claim—based on his
placement in respite in air-conditioned respite cages during the summer of
2023 and September 4, 2024—against Sgt. J. Perez, Sgt. Ralphs, Sgt.
Martinez, Officer Chapa, and Maj. Masters in their individual capacities;
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● Plaintiff’s Eighth Amendment deliberate indifference claims against several
unknown officers in their individual capacities for allegedly denying him
respite and cool showers on three occasions on June 4, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Sgt.
Ralphs in his individual capacity for allegedly denying Plaintiff unspecified
measures under AD-10.64 on June 16, 2026;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer
Liserio in his individual capacity for allegedly refusing to provide Plaintiff
with respite on June 24, 2023, despite Plaintiff having posted a “need respite”
sign on his cell door;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Sgt.
Martinez, Officer Chapa, and an unknown officer in their individual capacities
for allegedly denying Plaintiff respite and a medical screening on June 24,
2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against unknown
officers in their individual capacities for allegedly denying Plaintiff respite all
day on July 14, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown female officer in her individual capacity for allegedly denying
Plaintiff respite at 5:15 p.m. and 6:05 p.m. on July 17, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against unknown
officers in their individual capacities for allegedly denying Plaintiff respite all
day long on both July 24 and July 25, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Sgt.
Austin, Lt. Dougherty, Officer Reeves, and unknown officers in their
individual capacities for allegedly denying Plaintiff respite and cool showers
everyday (with the exception of the claim against Sgt. Austin discussed above
in connection with the denial of respite on September 7, 2023) between
September 7 and 17, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer
Liserio in his individual capacity for allegedly denying Plaintiff respite and a
medical screening at 5:15 p.m. on September 18, 2023;
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● Plaintiff’s Eighth Amendment deliberate indifference claims against Officer
Liserio and an unknown officer in their individual capacities for allegedly
denying Plaintiff respite and a cool shower at 4:49 p.m. and 7:27 p.m. on
September 19, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown sergeant in his or her individual capacity for allegedly denying
Plaintiff respite and a cool shower at 8:45 p.m. and 9:58 p.m. on September
20, 2023;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Sgt. Ms.
Perez and Officer Lopez in their individual capacities for allegedly denying
Plaintiff respite at 7:55 p.m. on May 4, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer
Oki in her individual capacity for allegedly ordering Plaintiff to leave respite
in the 10 Building and return to his cell on May 24, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer
Oki in her individual capacity for allegedly ordering Plaintiff to leave respite
on June 3, 2024, because Officer Oki had initiated an ICS;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Sgt. Mr.
Perez, unknown officers, and an unknown sergeant in their individual
capacities for allegedly ordering Plaintiff to leave respite on June 3, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Sgt. Mr.
Perez in his individual capacity for allegedly refusing to allow Plaintiff to go
to another respite area on June 3, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Sgt.
Gallaway and an unknown officer in their individual capacities for allegedly
denying Plaintiff respite on June 4, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Sgt.
Gallaway, Officer Contrerrez, and an unknown officer in their individual
capacities for allegedly denying Plaintiff respite on June 5, 2024;
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● Plaintiff’s Eighth Amendment deliberate indifference claim against Sgt.
Gallaway in his individual capacity for allegedly denying Plaintiff respite on
June 6, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claims against Officer
Lopez and an unknown officer in their individual capacities for allegedly
denying Plaintiff respite on June 12 and 15, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer
Alonso in his individual capacity for allegedly denying Plaintiff respite at 1:00
p.m. on June 28, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer De
La Cruz in his individual capacity for allegedly denying Plaintiff respite at
2:55 p.m. on June 28, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Capt.
Wilkens in his individual capacity for allegedly denying Plaintiff respite at
8:50 p.m. on June 29, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown officer in his or her individual capacity for allegedly denying
Plaintiff respite at 9:10 p.m. and 9:20 p.m. on June 29, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer
Ms. Perez in her individual capacity for allegedly denying Plaintiff respite at
10.25 p.m. on June 29, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer De
La Cruz in his individual capacity for allegedly denying Plaintiff respite at
11.50 p.m. on June 29, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Officer
Florez in his individual capacity for allegedly denying Plaintiff respite at noon
on June 30, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown officer in his or her individual capacity for allegedly denying
Plaintiff respite at 2.00 p.m. on June 30, 2024;
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● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown officer in his or her individual capacity for allegedly denying
Plaintiff respite at 9:25 p.m. on June 30, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Sgt.
Montavius in his individual capacity for allegedly denying Plaintiff respite on
July 7, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown official in his or her individual capacity for allegedly denying
Plaintiff respite at 2:30 p.m. and 6:00 p.m. on July 14, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown officer, cryptically named “Carbov”, in his or her individual capacity
for allegedly denying Plaintiff respite at 1:15 p.m. on July 21, 2024 and for
kicking Plaintiff out of respite sometime after 2:00 p.m. later that day;
● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown official in his or her individual capacity for allegedly denying
Plaintiff respite at 3:10 p.m. and the rest of the day on July 23, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against an
unknown official in his or her individual capacity for allegedly denying
Plaintiff respite at 2:15 p.m. on August 1, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Sgt. Alanis
in his individual capacity for allegedly denying Plaintiff respite sometime later
in the afternoon on August 1, 2024;
● Plaintiff’s Eighth Amendment deliberate indifference claim against Sgt.
Tiamiyu in his individual capacity for allegedly denying Plaintiff’s request to
another respite area around 6:00 p.m. on August 8, 2024 and instructing
Plaintiff to go outside;
● Plaintiff’s retaliation claim—based on the denial of water and a cup (as well as
access to the bathrooms) in the law library during dangerous summer heat
conditions in retaliation for complaining about using the law library and
exercising his right to petition the government—against Law Librarian
Thompson, Warden Amonett, Assistant Warden Flannell, Assistant Warden
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Samaniego, Capt. Cavazos, and unknown rank officers in their individual
capacities;
● Plaintiff’s retaliation claims—based on various incidents during the summer of
2023 and 2024 where he was denied respite, medical, cool showers, and other
heat-mitigation measures in retaliation for lodging complaints to prison
officials and the Court—against Capt. Herbst, Capt. Wilkens, Lt. Bleidrey, Lt.
Dougherty, Sgt. Ralphs, Sgt. J. Perez, Sgt. Austin, Sgt. Ramirez, Sgt.
Hampson, Officer Liserio, Sgt. Ms. Perez, Sgt. Tiamiyu, Sgt. Galloway, Sgt.
Montavius, Sgt. Mr. Perez, Officer Chapa, Officer Sanchez, Officer Raone,
Officer Oki, Officer Contrerrez, Officer Alonso, Officer Lopez, Officer De La
Cruz, Officer Ms. Perez, Officer Florez, Officer Gbrrjh, unknown correctional
officers, and unknown rank officers in their individual capacities;
● Plaintiff’s retaliation claim—involving the acts of sending Plaintiff to a small
cage for respite in June and July of 2023 in retaliation for filing complaints,
ombudsman complaints, and grievances—against Maj. Masters, Sgt. J. Perez,
Sgt. Ralphs, Sgt. Martinez, Officer Chapa, and unknown rank officials in their
individual capacities;
● Plaintiff’s retaliation claim—based on various actions committed by Sgt.
Martinez during the summer of 2023 in retaliation for complaining and filing
grievances—against Sgt. Martinez in her individual capacity;
● Plaintiff’s retaliation claim—for confiscating and destroying his mini-forest
green notebook (which he had been carrying with him since June 4, 2023) on
July 11, 2023 in retaliation for complaining and filing grievances—against
unknown officers in their individual capacities;
● Plaintiff’s retaliation claims—in placing Plaintiff in a small respite cage on
June 20, 2023 and forcing Plaintiff to leave respite on July 30, 2023—against
Sgt. Ramirez in her individual capacity;
● Plaintiff’s retaliation claim—in kicking Plaintiff out of respite on June 3,
2024—against Officer Oki in her individual capacity;
● Plaintiff’s retaliation claim— in kicking Plaintiff out of respite and denying
his request to go to another respite area on August 8, 2024—against Sgt.
Tiamiyu in his individual capacity;
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● Plaintiff’s retaliation claims— involving his placement in a small cage and
subsequent filing of a false disciplinary case against him in early September
2024—against Capt. Cavazos, Sgt. Ralphs, and Officer Melchor in their
individual capacities;
● Plaintiff’s claims for failure to prevent retaliatory acts committed by
subordinate employees against Warden Amonett, Assistant Warden
Samaniego, and Assistant Warden Flannell in their individual supervisory
capacities;
● Plaintiff’s First Amendment denial-of-access-to-courts claim— when they, on
July 11, 2023, confiscated and destroyed the legal work product contained in
his notebook—against unknown correctional officers in their individual
activities;
● Plaintiff’s Fourteenth Amendment due process claims—regarding the failure
to call Plaintiff to attend an August 18, 2023 disciplinary hearing, failure to
present a defense for Plaintiff at the hearing by calling witnesses on his own
behalf, intentional denial of effective substitute counsel, and failure to provide
him with a written disposition—against Substitute Counsel Gonzales and
unknown officers in their individual capacities;
● Plaintiff’s Fourteenth Amendment equal protection claim—in connection with
the August 2023 disciplinary proceeding, including the August 18, 2023
disciplinary hearing—against unknown rank officials in their individual
capacities;
● Plaintiff’s Fourteenth Amendment equal protection claims—in connection
with officials’ actions in denying Plaintiff access to certain heat-mitigation
measures during the summers of 2023 and 2024—against unknown
correctional officers in their individual capacities; and
● Plaintiff’s failure-to-accommodate claims under the ADA and RA against all
of the named and unknown defendants in their individual capacities.
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Respectfully recommended on May 22, 2026.
____________________________
Julie K. Hampton
United States Magistrate Judge
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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