Roy v. Akwitti et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
MARK ANTHONY ROY,
Institutional ID No. 02408963,
Plaintiff,
v.
AKWITTI, et al.,
Defendants.
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Civil Action No. 1:23-CV-00032-BU1
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Mark Anthony Roy, an inmate incarcerated by the Texas Department of
Criminal Justice (TDCJ), brings this conditions-of-confinement claim under 42 U.S.C.
§ 1983 against Warden Chimdi Akwitti and Assistant Warden Phillip McCain. See Dkt.
No. 21. Defendants now bring a Motion for Summary Judgment asserting qualified
immunity. Dkt. No. 33.
For the reasons below, the undersigned RECOMMENDS that the Court GRANT
Defendants’ Motion.
I. JURISDICTION
Roy brings this action under 42 U.S.C. § 1983, providing the Court with subject-
matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3). Venue is proper in the Northern
1 This case was stayed and administratively closed, then reopened and the stay lifted on November 22, 2024.
Dkt. No. 27.
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District of Texas, Abilene Division, because the events giving rise to Roy’s claims occurred
at TDCJ’s John Middleton Unit in Jones County, Texas. See Dkt. No. 1. The undersigned
has the authority to enter these Findings, Conclusions, and Recommendations after United
States District Court Judge James Wesley Hendrix transferred this case to the undersigned
for preliminary screening. Dkt. No. 6; 28 U.S.C. § 636(b)(1)(B).
II. FACTUAL BACKGROUND
As alleged, Roy and 220 other inmates were required to sleep on the floor of the
gym while at the Middleton Unit. Dkt. No. 1 at 6. Roy is one of at least eleven “gym floor”
plaintiffs who allege similar facts. Dkt. No. 21 at 2. Through the Court’s review of the gym-
floor cases, the Court learned that inmates were likely assigned to the gym according to an
overarching policy of placing inmates with heat restrictions in air-conditioned housing. Id.
at 3 fn 4. Each plaintiff, including Roy, appears to have had a heat restriction based on a
medical condition, a mental health condition, or a prescribed medication, and the gym at
the Middleton Unit had air conditioning.2 Id.
Roy arrived at the Middleton Unit on September 12, 2022, and remained there until
his transfer to the Lindsey Unit on November 26, 2022. Dkt. No. 1 at 6. Three days after
arriving at Middleton, Roy had an intake physical exam. During that exam, he disclosed
2 It is not clear from the record whether other parts of the Middleton Unit also had air conditioning at the
time. A TDCJ inter-office communication in the authenticated records explains the following:
“Inmates that are assigned to the gym are placed there due to them having a heat score of
at least P-01 or higher. Dormitories that are on the John W. Middleton are not equipped
with controlled air. The gym has been equipped with temporary air conditioning for
housing of inmates with this score … The gym is not equipped to house inmates of that
capacity [150 to 200] for an extended time period.”
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that at age seven he was run over by a school bus requiring reconstructive surgery placing
screws and pins in his hips. Dkt. Nos. 20 at 11:083; 1 at 6; 36 at 72. He also disclosed
“severe chronic pain” and a lower-bunk restriction due to this childhood incident, which
the record reflects. Dkt. Nos. 1 at 6; 12 at 3; 36 at 72, 123 (reflecting a lower-bunk only
assignment since 3/5/2004). He further reported “severe fatigue” and “difficulty falling
asleep.” Dkt. No. 36 at 72. Despite these documented medical issues and restrictions, Roy
was provided only a quarter-inch thick mattress made of cotton to sleep on. Dkt. No. 20 at
11:10.
Roy alleges that sleeping on the floor was exacerbated by several other gym
conditions. For instance, rats crawled amongst the inmates, day and night, and would crawl
under blankets to access inmates’ commissary food. Id. at 11:16. Additionally, there was
rat feces in Roy’s food. Id.
Roy also alleges that plumbing and bathroom issues further exacerbated the gym
conditions. He claims that 220 inmates had to line up to use one urinal and that the two
toilets in the bathroom backed up and leaked raw sewage into the first and second rows
where inmates slept. Dkt. Nos. 1 at 6; 20 at 11:21–22. Roy states he was on the third row,
but regardless, the same mop that was used to clean the sewage in the bathroom was the
same mop they used in the gym area; creating an unsanitary environment. Dkt. No. 20 at
11:21–22.
Roy details instances where Akwitti and McCain visited the gym and were
3 Citations to Roy’s Spears hearing refer to the time of day; so a timestamp for 11:08 refers to a statement
made at 11:08 a.m.
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confronted by inmates complaining about the living conditions. Roy says that he spoke
with Akwitti four to five times about the conditions and McCain two to three times. 11:17–
20. Their purported responses were along the lines of, “we’re working on it.” Id. He also
alleged that he “told the Wardens every time they came into the gym” that he had a lower-
bunk restriction. Dkt. No. 12 at 3. Despite these interactions, the conditions never improved
during the 75 days Roy was housed on the gym floor. Dkt. No. 12 at 4.
Roy brings this §1983 claim against Defendants in their individual capacities
seeking $55,000.00 in punitive damages against each Defendant. Dkt. No. 1 at 4.
III. LEGAL STANDARDS
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “[T]he substantive law will identify which facts are material[,]” but
it must be one that “might affect the outcome of the suit[.]” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine within the meaning of Rule 56 only
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id.; Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351, 358 (5th Cir. 2020).
A governmental employee who is sued under § 1983 may assert qualified immunity
as an affirmative defense to liability. White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992).
Qualified immunity protects government officials performing discretionary functions from
suit and liability for civil damages to the extent their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine protects “all but the
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plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.
335, 341 (1986).
When qualified immunity is asserted in a motion for summary judgment, that
assertion “alters the usual summary judgment burden of proof.” Brown v. Callahan, 623
F.3d 249, 253 (5th Cir. 2010). Movants have no burden “to put forth evidence to meet
[their] summary judgment burden for a claim of immunity” and need only assert the
defense in good faith. Beck v. Tex. State Bd. of Dental Examiners, 204 F.3d 629, 633 (5th
Cir. 2000). “[O]nce properly raised by the defendant, the plaintiff has the burden to negate
the assertion of qualified immunity.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016)
(citation and internal quotation marks omitted). This means the plaintiff “must show: (1)
that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Cass v. City of Abilene, 814 F.3d 721,
728 (5th Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
In deciding whether a plaintiff has shown a violation of a protected right sufficient
to survive summary judgment, courts consider the facts alleged in the light most favorable
to the plaintiff. Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled in part by Pearson v.
Callahan, 555 U.S. 223 (2009). But “a party cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, ‘or only a scintilla of evidence.’”
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam)). The
plaintiff must identify specific evidence in the record and show how it presents a genuine
issue of material fact for trial. Celotex, 477 U.S. at 324; see also RSR Corp. v. Int’l Ins.
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Co., 612 F.3d 851, 857 (5th Cir. 2010). Furthermore, “[t]he court has no duty to search the
record for material fact issues.” RSR Corp., 612 F.3d at 857; see also Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (“If somewhere in a record there is
evidence that might show a dispute of material fact, the district court needs to be pointed
to that evidence as opposed to having to engage in an extensive search.”).
IV. ANALYSIS
To overcome Defendants’ assertion of qualified immunity on summary judgment,
Roy must show the existence of a fact issue on each of the following: (1) objectively,
Defendants exposed him to a substantial risk of serious harm by denying him the minimal
measure of life’s necessities; (2) subjectively, Defendants were deliberately indifferent to
the risk; (3) the law was clearly established that Roy had a constitutional right to be free
from the alleged conditions; and (4) in light of clearly established law Defendants conduct
was objectively unreasonable.
The first and second elements relate to the first prong analysis—a constitutional
violation. The third and fourth elements relate to the second prong analysis—clearly
established law. The undersigned will address each element in turn.
Roy did not produce any evidence in response to Defendants’ Motion. However, the
Court may consider Roy’s verified allegations—including the complaint, response to the
magistrate judge’s questionnaire, and testimony at Roy’s Spears hearing—as competent
summary judgment evidence. See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003).
Furthermore, at this stage, the Court must “accept the plaintiff’s version of the facts (to the
extent reflected by proper summary judgment evidence) as true.” Haggerty v. Tex. S. Univ.,
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391 F.3d 653, 655 (5th Cir. 2004).
1. The First Prong: Constitutional Violation
a. Eighth Amendment Conditions of Confinement
The Eighth Amendment prohibits “cruel and unusual punishments,” U.S. Const.
amend. VIII, and “[t]he treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment.” Gates v. Cook,
376 F.3d 323, 332 (5th Cir. 2004). While the Constitution does not mandate comfortable
prisons, it does not permit inhumane ones. Rhodes v. Chapman, 452 U.S. 337, 349 (1981);
Farmer v. Brennan, 511 U.S. 825, 832 (1994). An Eighth Amendment violation occurs
when prison conditions pose an unreasonable risk of serious damage to a prisoner’s
health—an objective test—and prison officials act with deliberate indifference to the risk
posed—a subjective test. Garrett v. Lumpkin, 96 F.4th 896, 900 (5th Cir. 2024).
The objective component also requires showing that the conditions were objectively
“sufficiently serious” or “extreme.” Farmer, 511 U.S. at 834 (citation omitted) (first
quote); Hudson v. McMillian, 503 U.S. 1, 9 (1992) (second quote). The deprivation must
involve a basic human need—such as food, clothing, medical care, and safe and sanitary
living conditions—and must deny the inmate of the minimal civilized measure of life’s
necessities. Hope v. Harris, 861 F. App’x 571, 582 (5th Cir. 2021); Chapman, 452 U.S. at
347–49. The conditions are measured against the standards of decency that mark the
progress of a maturing society. Chapman, 452 U.S. at 346–48.
For the objective component, the Court must examine the totality of the
circumstances. Id. at 363–64. Even if no single condition of confinement alone would be
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unconstitutional, exposure to multiple conditions may subject inmates to cruel and unusual
punishment when they have a “mutually enforcing effect” that produces the deprivation of
a single, identifiable human need, such as food, warmth, or exercise. Wilson v. Seiter, 501
U.S. 294, 304 (1991) (explaining that there may be an Eighth Amendment violation where
a prisoner complained of a “low cell temperature at night combined with a failure to issue
blankets”).
The subjective component requires proof that the prison official acted with
deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834 (to violate
the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently
culpable state of mind). The standard is not met merely from a 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).
Therefore, the inmate must show that prison officials were: (1) “aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists”; (2)
“subjectively drew the inference that the risk existed”; and (3) “disregarded the
risk.” Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (citing Farmer, 511 U.S. at 837)
(alterations omitted). More simply, the prison officials must know of, and disregard, an
excessive risk to a prisoner’s health or safety. See id. (citation omitted). Under exceptional
circumstances, a prison official’s knowledge of a substantial risk of harm may be inferred
by the obviousness of a substantial risk. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998).
b. Objective Component
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Roy contends that he was forced to: (1) sleep on the floor; (2) on a quarter-inch
mattress; (3) in a rat-infested gym; (4) with one urinal and two leaking toilets for 220
inmates; and (5) that plumbing issues caused unsanitary living conditions, all of which
constitutes cruel and unusual punishment. Dkt. Nos. 1 at 6, 20 at 11:10–11, 11:15–16,
11:21–22. He adds that these conditions were exacerbated by his documented medical
conditions and the length of time he was forced to endure the conditions. See generally
Dkt. No. 20 at 11:06–22.
i. The gym conditions
Defendants do not appear to contest that many, if not all, of the alleged conditions
existed. Rather, they argue that “[m]aintenance was done, several repairs were made to the
urinals and toilets, steps were taken to control the temperature in the gym, and pest control
measures were in place throughout Roy’s time at the Middleton Unit.” Dkt. No. 34 at 6.
The existence of the alleged conditions then appears to be undisputed, but Defendants insist
that they were “not in and of themselves objectively extreme.” Id. at 8. The undersigned
agrees with this assessment as far as it goes. There exists little, if any, caselaw to support
that any of the alleged conditions, in isolation, was a constitutional violation.4 Id. at 8–9.
4 Elliott v. Cerliano, No. 6:20-CV-00446, 2022 WL 2496200 (E.D. Tex. July 6, 2022) (presence of pests,
without more, does not amount to a constitutional violation); Lett v. La Salle Sw. Corr., No. 3:21-cv-02257-
S (BT), 2023 U.S. Dist. LEXIS 194118 (N.D. Tex. Sep. 7, 2023) (“only in extreme circumstances do
unsanitary conditions rise to the level of a constitutional deprivation”); Sowell v. Kyle, No. 2:08-CV-0051,
2011 U.S. Dist. LEXIS 10384 (N.D. Tex. Jan. 13, 2011) (the court found that water being turned off in a
cell due to a toilet overflowing, and the toilet containing items in it, causing the plaintiff to have to sleep
near it for a limited amount of time, was not a constitutional violation); Smith v. Copeland, 87 F.3d 265,
268 (8th Cir.1996) (the Eighth Circuit found that an inmate's four day confinement in a cell with an
overflowing toilet, creating a stench of feces and urine, did not violate the Eighth Amendment); Conlin v.
Thaler, 347 F. App’x 983, *1 (5th Cir. 2009) (finding that an inmate’s claim that his sleeping mat is
uncomfortable and caused him to lose sleep does not allege a constitutional violation); Castillo v. Cameron
County, 238 F.3d 339, 354 (5th Cir. 2001) (“[A]lthough overcrowding may give rise to unconstitutional
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But a court evaluating a conditions-of-confinement claim must consider the totality
of the circumstances a prisoner was forced to endure. Chapman, 452 U.S. at 363–64. The
objective circumstances here include not only the individual conditions themselves, but
whether they acted in combination with each other, their duration, and the health of the
inmate to have the mutually enforcing affect of creating a constitutional violation. Given
the conditions themselves are mostly undisputed, the undersigned turns first to Roy’s
preexisting medical conditions before turning to the duration of his exposure to harm.
ii. Roy’s medical conditions
Defendants acknowledge that Roy and others were assigned to the gym due to their
medical needs or compromised medical conditions. Dkt. No. 34 at 6. But Defendants do
not elaborate on the process or criteria used in making these assignments, the reason floor
assignments in the gym were necessary in the first place, or how long the wardens expected
floor assignments to last once they were implemented. These questions cannot be answered
on this record.
Defendants do not dispute that Roy had a preexisting hip injury—nor could they on
this record. Their argument instead, is that Roy “never complained about his preexisting
hip injury being aggravated by sleeping on the gym floor.” Id. at 9. And that the only time
he complained of hip pain was over a year later when he refused to be evaluated by medical
personnel.” Id.
Although true, several observations within the medical record provide insight into
conditions, overcrowding itself is not per se unconstitutional.”).
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whether the gym-floor conditions—objectively—posed an unreasonable risk of serious
damage to Roy’s health. For example, three days after being assigned a spot on the gym
floor, Middleton’s intake exam reflected Roy’s childhood reconstructive surgery, “severe
chronic pain”, a past neck trauma/injury, and leg pain when walking. Dkt. No. 36 at 72–
73. And shortly after transfer to the Lindsey Unit, the Lindsey medical staff notes: “Limited
ROM to bilat hips and Left knee from previous surgeries. Unable to squat or fully bend
down.” Id. at 10.
Further, Roy’s records reflect a “Bunk Assignment Lower Only” restriction since
2004. Id. at 123. And yet Roy was assigned to sleep on the gym floor despite even his
lower-bunk restriction, the supposed purpose of which is to make getting in and out of bed
easier. In that respect, the floor is no better than an upper bunk. But notwithstanding this
restriction and the intake notations of “chronic severe pain”, Roy was assigned a spot on
the gym floor and provided a quarter-inch thick mattress for his entire 75-day stay at
Middleton.
All to say, the existence of Roy’s medical conditions—some of which reasonably
would have counseled against a floor assignment—does not appear to be disputed and are
part of the totality of circumstances the Court, and a reasonable jury, should consider in
assessing whether Roy was objectively exposed to a substantial risk of serious harm.
iii. Duration of Roy’s exposure to conditions
Generally, extremely egregious conditions, even for a short duration, can give rise
to an Eighth Amendment claim. See Taylor v. Riojas, 592 U.S. 7, 52–54 (2020) (filthy cell
with massive amounts of feces, four days; then frigid cell with clogged drain and no
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clothes, two days). The calculus obviously runs in the other direction, as well—less
egregious conditions can become a constitutional violation if a prisoner is forced to endure
them for a long time. See Hutto v. Finney, 437 U.S. 678, 686–87 (1978) (holding that “the
length of confinement cannot be ignored in deciding whether the confinement meets
constitutional standards” and observing that “[a] filthy, overcrowded cell and a diet of
‘grue’ might be tolerable for a few days and intolerably cruel for weeks or months”).
The Defendants do not dispute that Roy was assigned a spot on the gym floor for
his entire 75-day stay at Middleton. They also do not dispute that the conditions never
improved during his stay.
That Roy endured these conditions for 75 days is particularly concerning. As the
Hutto court observed, the length of confinement cannot be ignored in deciding whether the
confinement meets constitutional standards. 437 U.S. at 686–87. Here, considering the
facts in a light most favorable to Roy, a reasonable jury could find that he was exposed to
the combined conditions for 75 days and that this duration aggravated the severity of the
overall deprivation. Harris, 861 F. App'x at 586 (Haynes J., concurring in part). Ultimately,
the combined conditions “might have been tolerable for a few days” but a reasonable jury
could find that they became “intolerably cruel” when endured for 75 days. See Hutto, 437
U.S. at 686–87. It must also be remembered that the sole reason Roy and the other inmates
were in the gym was because TDCJ recognized they were medically unable to endure the
heat.
iv. Mutually enforcing effect of conditions
The summary judgment evidence fails to resolve genuine factual disputes about
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whether the combined conditions—rats, thin mattress, no bunk or cot, overcrowding,
backed up plumbing—had a mutually enforcing effect of objectively depriving Roy of the
basic human need of safe and sanitary living conditions. As discussed, the Court must
further consider these combined conditions in the context of: (a) Roy’s medical conditions
when assigned to the gym; and (b) the duration of Roy’s exposure to the gym conditions.
Harris, 861 F. App'x at 582. Roy’s verified pleadings provide more than a scintilla of
evidence from which a reasonable jury could resolve these issues in his favor, and
Defendants have failed to sufficiently rebut these claims to remove them from the province
of a jury.
c. Subjective Component
Having determined that fact issues exist as to whether Roy was objectively exposed to a
substantial risk of serious harm, the undersigned turns now to whether Roy can show
genuine disputes on whether each warden acted with deliberate indifference to that risk.5
See Farmer, 511 U.S. at 834. The undersigned begins with Akwitti.
i. Warden Akwitti’s subjective indifference
Roy asserts that Akwitti was directly aware of the conditions in the gym. According
to Roy, he spoke with Akwitti four to five times about the conditions. Dkt. No. 20 at 11:17–
20. Each time he spoke to Akwitti, he informed him of his lower-bunk restriction. Dkt. No.
12 at 3. Roy states that Akwitti’s response was something along the lines of “we’re working
5 The court must address the actions of each warden individually to determine whether qualified immunity
applies. Cass, 844 F.3d at 730-31; Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007); Stewart v.
Murphy, 174 F.3d 530, 537 (5th Cir. 1999).
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on it.” Dkt. No. 20 at 11:18–20.
Roy explains that people from Huntsville came in to take pictures of the gym and
interview inmates; suggesting that Akwitti subjectively drew the inference that a risk of
serious harm existed and that the conditions in the gym presented a real problem. Id.;
Cleveland, 938 F.3d at 676. Roy further alleges that Akwitti repeatedly told Roy he would
have them all out by the first of the month. Id. When this didn’t happen on the first of
October or on the first of November, Roy lost faith in anything Akwitti said and believed
he was not actually making any accommodations to get them out; implying Akwitti
disregarded the risk posed by the gym conditions. Id.; Cleveland, 938 F.3d at 676.
Combined with Roy’s allegation that the conditions never improved, the verified
pleadings could reasonably support a finding that Akwitti personally visited the gym
multiple times and was fully aware of whatever conditions existed. On this, there is no
genuine dispute. Common sense also dictates that, even on Defendants’ version of the facts,
the warden would have not only known of the conditions, but also would have made or
approved the decision to house inmates in the gym and established the criteria for such
assignments.
It is also undisputed that Akwitti understood the medical vulnerability of the inmates
assigned to the gym. Defendants admit that “[b]ecause of Roy’s prescription medication,
he, along with several other inmates, was housed on the gym floor for a brief period.” Dkt.
No. 34 at 6. In other words, inmates were assigned to the gym precisely because they had
medical or mental health conditions and were being treated for the same. It is reasonable
to infer that Akwitti further knew that those housed there, including Roy, faced heightened
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medical risks if confined under other adverse conditions, including those that were
unsanitary, overcrowded, unsafe, or otherwise unhealthy.
The duration of Roy’s stay further strengthens the inference of deliberate
indifference. A reasonable jury could conclude that Akwitti had ample opportunity during
those 75 days to observe and correct the conditions. In other words, this was not a situation
requiring split-second decision-making or an emergency response where qualified
immunity typically affords officers the benefit of the doubt. See Villarreal v. City of Laredo,
134 F.4th 273, 284 (5th Cir. 2025) (Oldham, J., concurring). The longer Roy was in the
gym, the more likely it was that Akwitti was both aware of the conditions and had time to
effectively abate them, including by relocating the inmates, providing cots, stepping up
maintenance and pest control, or other measures, but instead disregarded the risk. Harris,
861 F. App’x at 586 (Haynes J., concurring in part).
Defendants advance one principal argument here: Akwitti could not have been
deliberately indifferent because the record shows he “took reasonable measures to repair
amenities and to abate the presence of pests.” Dkt. No. 34 at 10. But those measures must
be reasonable. Farmer, 511 U.S. at 847 (“[A] prison official may be held liable under the
Eighth Amendment for denying humane conditions of confinement only if he knows that
inmates face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.”) (emphasis added). A reasonable jury could conclude that
even repeated attempts to resolve a condition when officials know the attempts are
inadequate are overall unreasonable.
Further to this point, Defendants fail to provide context from which the Court can
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determine whether these remedial actions were reasonable. Akwitti claims that between
March 3, 2022, and November 8, 2022, maintenance addressed gym plumbing issues 18
times and that between September 2022 and December 2022 pest control was brought in 5
times. Dkt. No. 34 at 11. But the reasonableness of making 18 plumbing repairs in eight
months can only be assessed after knowing how many plumbing repairs were in fact needed
during that same time. The record is silent on that fact. If the toilets, urinals, and sinks were
in a constant state of disrepair despite intermittent fixes—not an unreasonable inference in
a confined space with 220 inmates—that might reflect on the reasonableness of 18 repairs
over eight months. Same with pest control. If there was an intractable rat infestation in a
gym where 220 inmates were forced to sleep on the floor—which also has support in the
summary judgment evidence—then are five pest control treatments reasonable?6
Given the variables involved, the answers to these questions are difficult to resolve
on this record. This is partly because the alleged conditions are by their nature fact
intensive. But it is also because the maintenance and pest control records in the summary
judgment evidence are of little help. For instance, the undersigned can only find 16
instances of gym plumbing repairs between March and November 2022, and four of those
were made to the officers’ restroom in the gym. See Dkt. No. 36 at 139–71. Of the
6 Several entries in the records tend to corroborate Roy’s assertions that the gym was infested with rats and
other sanitation issues. For instance, one pest report notes that the “kitchen was very dirty, with lots of food
everywhere, trash all over the place, water standing on the ground, and lots of rats seen taking food from
the floor.” Dkt. No. 36 at 177 (cleaned up). Another states, “Rodent droppings in food services, dry storage,
commissary, and medical. Units all dirty. Housing areas need to clean around trash cans.” Id. at 179 (cleaned
up). Another states, “Water on ground in kitchen. Horrible smell. Removed a dead rat from kitchen.” Id. at
176. Another states, “Kitchen needs cleaning. Water and food on ground. All housing areas needs to be
cleaned.” Id. at 175. And yet another states, “Dirty and wet. Food all over ground. Food swept into piles.
Trash laying around.” Id. at 180 (cleaned up).
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remaining 12 repairs to the inmate portion of the gym, only three of those were made during
the time Roy might have been assigned to the gym. And all three were made on the same
day, November 9, 2022. Id. at 166. While it is possible that three plumbing repairs on a
single day were a reasonable response to the gym’s plumbing problems during the two-
and-a-half months Roy was at the Middleton Unit, the summary judgment record does not
help answer that question, and a reasonable jury might regard that response as
unreasonable.
The records provided by Defendants on pest control are even less helpful.
Defendants argue that “Pest Control Records show that on September 9, 2022, October 12,
2022, November 1, 2022, December 5, 2022, and December 7, 2022, pest control was
brought in to apply pest control measures.” Dkt. No. 34 at 11. Again, context is important.
The record supports that pest control services visited the Middleton Unit five times from
September through December. Dkt. No. 36 at 120–27. But the record only supports that
the gym was treated on one of those occasions, on September 6. Id. at 177.
The summary judgment evidence establishes that Akwitti took some remedial
measures over several months in response to the conditions in the gym, and elsewhere. The
evidence further establishes that the measures that were taken were themselves reasonable.
But the Fifth Circuit has held that taking some reasonable measures does not mean an
officer, on the whole, behaved reasonably. Converse v. City of Kemah, 961 F.3d 771, 779
(5th Cir. 2020) (citing Jacobs v. West Feliciana Sheriff’s Dep’t, 228 F.3d 388, 395–96 (5th
Cir. 2000)). A reasonable jury could find that despite Akwitti taking some reasonable steps,
his overall response to the prolonged conditions in the gym was not, on the whole,
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reasonable. And that it may not have been, on the whole, reasonable to address only some
of the conditions—rats and plumbing—while ignoring some of the more dangerous
conditions that posed a substantial risk to Roy’s health and safety—sleeping on the floor
and overcrowding.
Thus, based on the summary judgment evidence, a reasonable jury could find: (1)
Akwitti was aware that a large number of inmates, including Roy, were assigned to the
gym, and that Akwitti likely made that decision; (2) due to the inmates having either a
medical or mental health condition or treatment; (3) Akwitti was aware of the adverse
conditions in the gym; (4) Akwitti was aware the conditions persisted for months despite
remedial measures being taken; and (5) that more remedial measures were within his
control to make, but he did not make them. The summary judgment evidence is sufficient
to create genuine disputes of material fact as to whether Akwitti acted with deliberate
indifference.
ii. Assistant Warden McCain’s subjective indifference
Turning now to Assistant Warden McCain, Roy alleges they spoke on two to three
occasions regarding the conditions and that he also informed McCain of his lower-bunk
restriction. Dkt. Nos. 12 at 3; 20 at 11:17–20. McCain told Roy “we’re working on it” but
the conditions never improved. Dkt. Nos. 12 at 4; 20 at 11:17–20.
McCain, unlike Akwitti, submits a sworn declaration stating: “While plumbing was
a consistent issue, maintenance was called often for repairs, and all inmates housed in the
Gym at the Middleton Unit during my tenure had access to a toilet although they may have
had to wait in line periodically due to the volume of inmates.” Dkt. No. 36 at 183. In the
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declaration, McCain also speaks about a “fly problem” and says he “personally brought in
fly strips.” Id. Here again McCain argues that he “took reasonable measures to repair
amenities and to abate the presence of pests,” and thus he was not deliberately indifferent.
Dkt. No. 34 at 10.
The record of remedial measures is a two-edged sword. Yes, they are evidence of
attempts to address the problems, but they are also necessarily evidence of awareness of
the problems. Further, if a reasonable jury finds the conditions existed as Roy claims, which
it could, the same jury could find that those conditions would have been readily apparent
to McCain during his visits to the gym. Not to mention it seems in McCain’s Motion for
Summary Judgment and his sworn declaration that he admits to the presence of most, if
not all, of the conditions Roy complains of.
Moreover, viewing the facts in the light most favorable to Roy, it is reasonable to
infer that McCain was privy to the same baseline knowledge as Warden Akwitti: that
medically vulnerable inmates were housed on the gym floor for an extended time under
debased conditions which were not effectively addressed through, what appears to be,
routine maintenance and pest control. See Dkt. No. 34 at 6 (Roy and others were assigned
to the gym floor because of “prescription medication[s.]”).
A reasonable jury could find that despite McCain taking some reasonable steps, his
overall response to the prolonged conditions in the gym was not, on the whole, reasonable.
Thus, as with Akwitti, a reasonable jury could find: (1) McCain was aware that a large
number of inmates, including Roy, were assigned to the gym, and that McCain was likely
involved in that decision as assistant warden; (2) due to the inmates having either a medical
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or mental health condition or treatment; (3) McCain was aware of the adverse conditions
in the gym; (4) McCain was aware the conditions persisted weeks if not months despite
remedial measures being taken; and (5) that more remedial measures were within his
control to make, but he did not make them. The summary judgment evidence is sufficient
to create genuine disputes of material fact as to whether McCain acted with deliberate
indifference.
2. The Second Prong: Clearly Established
Finding that a jury could resolve the first prong in Roy’s favor, the undersigned turns
now to whether Roy’s right to be free from those conditions was clearly established. This
second prong involves “two separate inquiries: whether the allegedly violated
constitutional rights were clearly established at the time of the incident; and, if so, whether
the conduct of the defendants was objectively unreasonable in the light of that then clearly
established law.” Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998). Because the
undersigned finds that the law was not clearly established, the undersigned does not discuss
whether the Defendants’ conduct was objectively unreasonable.
Defendants urge that “even assuming arguendo that the Court finds sufficient
evidence of a constitutional violation, Warden Akwitti and Warden McCain would still be
entitled to qualified immunity because their actions were objectively reasonable in light of
clearly established law.” Dkt. No. 34 at 12. They continue, “there is simply no precedent
holding that pests and leaking toilets being actively controlled and maintained amounts to
a constitutional violation.” Id.
“To be clearly established, a right must be sufficiently clear that every reasonable
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official would have understood that what he is doing violates that right.” Reichle v.
Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and modifications omitted).
Even if an official’s conduct violated a clearly established constitutional right, the official
is nonetheless entitled to qualified immunity if his conduct was objectively reasonable
under the circumstances. See Jones v. Collins, 132 F.3d 1048, 1052 (5th Cir. 1998).
“There are two ways to demonstrate clearly established law.” Batyukova v. Doege,
994 F.3d 717, 726 (5th Cir. 2021). First, the plaintiff may identify a case—usually, a body
of relevant case law—in which an officer acting under similar circumstances . . . was held
to have violated the [Constitution]. Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020)
(quoting District of Columbia v. Wesby, 583 U.S. 48, 63–64 (2018)) (internal quotation
marks omitted). This first approach “do[es] not require a case directly on point[.]”
Batyukova, 994 F.3d at 726. But the existence of the right must be “sufficiently clear” that
every reasonable officer would have understood the challenged conduct to have been
unlawful. Id. (citing Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks
omitted). In other words, “‘[t]he central concept is that of “fair warning”: The law can be
clearly established ‘despite notable factual distinctions between the precedents relied on
and the cases then before the Court, so long as the prior decisions gave reasonable warnings
that the conduct at issue violated constitutional rights.’’” Trammell v. Fruge, 868 F.3d 332,
339 (5th Cir. 2017) (quoting Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013)
(quoting, in turn, Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc))).
As the Fifth Circuit has explained:
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Rights are “clearly established” when “existing precedent ‘squarely governs’
the specific facts at issue,” Kisela v. Hughes, 584 U.S.100, 104–05, 138 S.
Ct. 1148, 1153, 200 L.Ed.2d 449 (2018) (per curiam) (quoting Mullenix v.
Luna, 577 U.S. 7, 15, 136 S. Ct. 305, 193 L.E.2d 255 (2015) (per curiam)),
not when a rule is merely “suggested by then-existing precedent,” City of
Tahlequah v. Bond, 595 U.S.9, 12, 142 S. Ct. 9, 11, 211 L.Ed.2d 170 (2021)
(per curiam). The Supreme Court recently . . . reminded lower courts “not to
define clearly established law at too high a level of generality.” Id. Rather,
courts must determine that existing precedent has rendered the right “beyond
debate.” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5, 142 S. Ct. 4, 8, 211
L.Ed.2d 164 (2021) (per curiam) (quoting White v. Pauly, 580 U.S. 73, 137
S. Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam)).
Henderson v. Harris Cty., 51 F.4th 125, 132–33 (5th Cir. 2022).
The second way a plaintiff may demonstrate that a law is clearly established is with
“the ‘rare’ possibility that, in an ‘obvious case,’ analogous case law ‘is not needed’ because
‘the unlawfulness of the [challenged] conduct is sufficiently clear even though existing
precedent does not address similar circumstances.’” Joseph, 981 F.3d at 330 (quoting
Wesby, 138 S. Ct. at 590). “[I]n an obvious case, general standards can [therefore] ‘clearly
establish’ the answer, even without a body of relevant case law.” Roque v. Harvel, 993
F.3d 325, 335 (5th Cir. 2021). But “[t]he standard for obviousness is sky high[.]” Joseph,
981 F.3d at 337.
Whether a right is clearly established is typically a question of law, but there may
be factual disputes which are relevant to the determination. Cruz v. Cervantez, 96 F.4th
806, 813 (5th Cir. 2024). But ultimately, to defeat an assertion of qualified immunity, the
plaintiff “has the burden to point out clearly established law [and] rais[e] a fact issue as to
its violation.” Tucker v. City of Shreveport, 998 F.3d 165, 173 (5th Cir. 2021). Again, Roy
has not filed a response to the Motion.
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a. A case or body of caselaw
Pertaining to the “case or body of caselaw” path of demonstrating clearly
established rights, the Court’s “fair warning” inquiry should consider only published
opinions issued before Roy’s assignment to the gym floor on September 26, 2022. Tolan,
572 U.S. 650, 656 (2014) (the second prong of the qualified-immunity analysis asks
whether the right in question was “clearly established” at the time of the violation); Marks
v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019) (because unpublished opinions are not
precedential, they “do not establish any binding law for the circuit” and thus “cannot be
the source of clearly established law for qualified immunity analysis”).
To find that Roy raised a fact issue on whether his constitutional rights were violated
required the undersigned to string together a varied combination of lesser-included fact
issues about the individual conditions themselves, the length of time Roy was exposed to
those conditions, and Roy’s particular medical conditions. But it is the same complexity of
how all these variables interact that preclude a finding that they violated clearly established
law.
True, Roy is not required to marshal a case on point. And there are some cases which
cite to the holding in Burleson v. Texas Dept. of Criminal Justice that “Burleson alleged a
violation of a clearly established constitutional right: the Eighth Amendment right to be
free from conditions of confinement which pose an unreasonable risk of damage to a
prisoner’s health.” 277 F.3d 1374, *2 (2001). But the undersigned does not read Burleson,
an unpublished decision, as establishing such a broad, general “clearly established right.”
Other conditions-of-confinement cases that might apply here similarly define that right at
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too high a level of generality to conclude that those cases “squarely govern” this case. Cope
v. Cogdill, 3 F.4th 198, 204–05 (5th Cir. 2021) (citing Brosseau v. Haugen, 543 U.S. 194,
201 (2004) (per curiam); Mullenix, 577 U.S. at 12 (emphasizing that “[t]he dispositive
question is whether the violative nature of particular conduct is clearly established”
(internal quotation marks and citation omitted))).
The authority that does exist is not sufficiently specific to put all reasonable officials
on notice that Defendants’ conduct was definitively unlawful. Buehler v. Dear, 27 F.4th
969, 981 (5th Cir. 2022). Nor has Roy pointed to a body of law that would put the
unconstitutionality of these combined conditions “beyond debate.” Ashcroft, 563 U.S. at
741. Reasonable minds could make arguments either way. Therefore, even though the
undersigned finds that Roy has created factual disputes regarding whether Defendants
violated his right to safe and sanitary living conditions, there was no clearly established
body of law at the time that would have put every reasonable officer on notice that this
complex set of circumstances definitively violated that right.
b. Obvious exception
The facts here also do not meet the “obvious” exception. Taylor and Pelzer involved
circumstances so egregious that any reasonable officer would have known they violated
the Constitution. In Taylor, prison officials confined an inmate for six full days in two
“shockingly unsanitary cells”—one covered nearly floor to ceiling in massive amounts of
feces, and the other frigidly cold with urine on the floor where the inmate was required to
sleep naked. 592 U.S. at 7–8. In Pelzer, an inmate was restrained to a hitching post for
seven hours without bathroom breaks as punishment, forced to remove his shirt so the sun
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would burn his skin, and taunted with water given first to the dogs and then spilled on the
ground. 536 U.S. at 734–35.
Roy may have been forced to endure the conditions here for a significantly longer
period of time. And it has been suggested that the need for granularity with the “clearly
established” prong may be more leniently applied where “the correctional officers had
plenty of time to assess their horrific conduct and recognize that it obviously violated the
law.” Villarreal, 134 F.4th at 282 (Oldham, J., concurring). Judge Oldham explained that
with the egregious facts of Taylor, “it was of no moment that precedent had only clearly
established a general prohibition on ‘inhumane’ conditions of confinement”, especially in
light of no “exigency”. Id. (citing Farmer, 511 U.S. 832). That said, Judge Oldham
observed at the same time, “the Court had apparently ‘never—until Taylor—actually used’
the obviousness standard ‘to decide a case.’” Id. fn 6 (citing Comment, Taylor v. Riojas,
135 HARV. L. REV. 421, 429 (2021)).
The standard for holding Defendants liable based on “obviousness,” rather than
clearly established law, is exceptionally high. Joseph, 981 F.3d at 337. Although the
conditions here were deplorable, they do not rise to the level of deplorability in Taylor or
Pelzer.
Roy can show genuine issues of material fact as to the first prong analysis—a
constitutional violation—but not as to the second prong analysis—clearly established.
Therefore, the Defendants are entitled to qualified immunity.7
7 Because Defendants are entitled to qualified immunity, this case should be dismissed. Although
Defendants’ repeatedly assert that the medical records show “there was no aggravation of [Roy’s]
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V. CONCLUSION
The facts, when viewed in the light most favorable to Roy, would permit a
reasonable jury to find that Roy was objectively exposed to a substantial risk of serious
harm and that the Defendants were subjectively indifferent to that risk. But the Court
should conclude that Roy’s right to be free from the objectively serious conditions was not
clearly established at the time. Accordingly, the undersigned RECOMMENDS that the
Court GRANT Defendant Akwitti and McCain’s Motion for Summary Judgment on
Qualified Immunity.
VI. RIGHT TO OBJECT
A copy of these Findings, Conclusions, and Recommendations shall be served on
all parties in the manner provided by law. Any party who objects to any part of these Find-
ings, Conclusions, and Recommendations must file specific written objections within four-
teen days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
To be specific, an objection must identify the specific finding or recommendation to which
the objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s Findings, Conclusions, and Recommendations where the disputed de-
termination is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written objec-
tions will bar the aggrieved party from appealing the factual findings and legal conclusions
preexisting hip injury or physical impact on his health for his alleged lack of adequate sleep”, Dkt. No. 34
at 6, Roy’s injury, if any, is irrelevant to Defendants’ entitlement to qualified immunity.
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of the magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417
(5th Cir. 1996).
VII. CASE TRANSFER
Having completed the preliminary screening of Roy’s claims, the undersigned
ORDERS that this case be TRANSFERRED back to the docket of the United States District
Judge and designated as Civil Action Number No. 1:23-CV-00032-H.
ORDERED this 22nd day of January 2026.
JOHN R. PARKER
UNITED STATES MAGISTRATE JUDGE
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