Gale v. Akwitti et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
JADEN GALE,
Institutional ID No. 02406952,
Plaintiff,
v.
CHIMDI AKWITTI, et al.,
Defendants.
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Civil Action No. 1:23-CV-00092-BU1
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Jaden Gale, 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. 17.
Defendants now bring a Motion to Dismiss Pursuant to Federal Rule 12(b)(6). Dkt. No. 23.
For the reasons below, the undersigned RECOMMENDS that the Court GRANT
Defendants’ Motion.
I. JURISDICTION
Gale brings this action under 42 U.S.C. § 1983, providing the Court with subject-
matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3). Venue is proper in the Northern
District of Texas, Abilene Division, because the events giving rise to Gale’s claims
1 This case was stayed and administratively closed, then reopened and the stay lifted on November 11, 2024.
Dkt. No. 22.
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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, Gale and approximately 220 other inmates were required to sleep on the
floor of the gym while at the Middleton Unit. 2 Dkt. No. 1 at 4. Gale was assigned to the
gym floor from August 31, 2022, through November 20, 2022—a total of 81 days. Id.
During that period, he slept directly on the floor without a mattress, in “shoulder reach of
the next man” and amid what he described as a “bed of rats.” Dkt. No. 13 at 3–4.
Overcrowding in the gym created additional unsanitary and unsafe conditions. All
220 inmates shared only two toilets, which were frequently inoperable and leaked sewage
from the bathroom area into the sleeping area. Dkt. No. 1 at 4. Inmates were also required
to walk outside at night to the intake building to take cold showers. Id. Gale further alleges
that fights regularly broke out in the gym and that officers responded by deploying
chemical agents, causing all inmates in the gym to suffer breathing difficulties. Id.; Dkt.
No. 13 at 6. According to Gale, these conditions persisted without improvement throughout
his 81-day confinement in the gym. Dkt. No. 13 at 7.
2 Gale is one of at least eleven “gym floor” plaintiffs who allege similar facts. Dkt. No. 17 at 2. Through
the Court’s review of the gym-floor cases, the Court learned that inmates were assigned to the gym
according to an overarching policy of placing inmates with heat restrictions in air-conditioned housing. Id.
at 3 fn 4. Each plaintiff, including Gale, 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. Id.
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Gale brings this action against Defendants in their individual capacities, seeking
$45,000 in punitive damages from each defendant. Dkt. Nos. 1 at 5; 17 at 16. He asserts
that the conditions were so obviously unconstitutional that subjecting him to them for 81
days warrants punitive relief. Dkt. Nos. 1 at 4–5; 13 at 2. Gale did not file a response to
Defendants’ Motion to Dismiss.
III. LEGAL STANDARDS
A. Motion to Dismiss: Rule 12(b)(6)
Rule 12(b)(6) permits a party to move for dismissal of a complaint for failure to
state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). When a district
court reviews a motion to dismiss pursuant to Rule 12(b)(6), it must construe the complaint
in the plaintiff’s favor, taking “all well–pleaded facts as true” and asking whether the
complaint contains sufficient “facts to state a claim to relief that is plausible on its
face.” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016); see Fed.
R. Civ. P. 12(b)(6). However, the Court need not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc., 407 F.3d
690, 696 (5th Cir. 2005).
Although generally the Court may not look beyond the pleadings, the Court may
examine the complaint, documents attached to the complaint, and documents attached to
the motion to dismiss to which the complaint refers and which are central to the plaintiff’s
claims, as well as matters of public record. Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010); see United States ex rel. Willard v. Humana Health
Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003) (stating that “the court may consider
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... matters of which judicial notice may be taken”). Taking judicial notice of public records
directly relevant to the issue in dispute is proper on a Rule 12(b)(6) review and does not
transform the motion into one for summary judgment. Funk v. Stryker Corp., 631 F.3d 777,
780 (5th Cir. 2011). “A judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction of the trial court, or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b).
B. Exhaustion Under the PLRA
The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is not jurisdictional, but rather
an affirmative defense on which the defendant bears the burden of proof. Jones v. Bock,
549 U.S. 199, 216 (2007). As such, “inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” Id.
The exhaustion requirement is mandatory. Woodford v. Ngo, 548 U.S. 81, 85
(2006). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of
proper exhaustion.” See id. at 218. The PLRA’s exhaustion requirement “is satisfied only
if the prisoner ‘pursue[s] the grievance remedy to conclusion.’” Wilson v. Epps, 776 F.3d
296, 301 (5th Cir. 2015) (quoting Wright, 260 F.3d at 358). “Proper exhaustion requires
that the prisoner … comply with all administrative deadlines and procedural rules.”
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Johnson v. Kukua, 342 F. Appx. 933, 934 (5th Cir. 2009) (per curiam) (citing Woodford,
548 U.S. at 89–93).
The PLRA contains only “one textual exception to its otherwise stringent exhaustion
requirement: availability. Inmates who fail to exhaust can proceed in court by showing that
administrative remedies were not ‘available.’ An administrative remedy is available if it is
‘capable of use to obtain some relief for the action complained of.’” Ross, 578 U.S. at 642
(cleaned up). A remedy is “not available if ‘it operates as a simple dead end, . . .’ if it is ‘so
opaque that it becomes, practically speaking, incapable of use,’ or if prison administrators
prevent access to it ‘through machination, misrepresentation, or intimidation.’” Valentine
v. Collier, 978 F.3d 154, 160 (5th Cir. 2020) (quoting id. at 643–44).
IV. ANALYSIS
Defendants seek dismissal under Rule 12(b)(6) for failure to state a claim upon
which relief may be granted on the sole ground that Gale failed to exhaust his
administrative remedies as required by the PLRA. “Although dismissal under Rule
12(b)(6) is ordinarily determined by whether the facts alleged in the complaint, if true, give
rise to a cause of action, a claim may also be dismissed if a successful affirmative defense
appears clearly on the face of the pleadings. Clark v. Amoco Prod. Co., 794 F.2d 967, 970
(5th Cir. 1986) (citing Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards,
Inc., 677 F.2d 1045, 1050 (5th Cir.1982), cert. denied, 459 U.S. 1105 (1983)). For example,
dismissal is appropriate when the allegations contain a date that establishes that relief is
barred by the applicable statute of limitations. Jones v. Bock, 549 U.S. 199, 215 (2007).
TDCJ’s grievance procedures are set forth in the TDCJ Offender Orientation
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Handbook.3 Under those procedures, an inmate must file a Step 1 grievance—reviewed by
officials at the inmate’s assigned facility—within fifteen days of the alleged incident or
challenged event. See TDCJ’s Offender Orientation Handbook at 73–75. If the Step 1
response is unsatisfactory, the inmate has fifteen days to file a Step 2 grievance, which
serves as an appeal. Id. Substantial compliance is not enough, the inmate must fully and
timely comply with both steps prior to filing suit. Dillon v. Rogers, 596 F.3d 260, 268 (5th
Cir. 2010).
Gale’s complaint alleges the following with respect to exhaustion:
Exhaustion of Grievance Procedures: Have you exhausted all steps of the
institutional grievance procedure? YES. (Submitted a grievance back in
September 2022. I am still waiting. I have also sent i-60’s to the ombudsman
in Huntsville, Texas. Those haven’t returned either.)
***
Several grievances went to [Grievance Officer Layland’s] desk as they were
“misplaced,” either or some have not returned.
***
Grievance Officer Layland is guilty for helping the John Middleton Unit
cover up their actions by not filing my grievance nor reporting the
unconstitutional [conditions] to the higher authorities.
Dkt. No. 1 at 2–4 (cleaned up).
Gale was asked through a questionnaire how he knew the inmates’ grievances or
3 The undersigned takes judicial notice of the Handbook because it is publicly available online and can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned. E.g.,
Cantwell v. Sterling, 778 F.3d 507, 509 (5th Cir. 2015) (per curiam) (taking judicial notice of the
Handbook); see FED. R. EVID. 201(b). The Handbook is available online at:
https://www.tdcj.texas.gov/documents/Offender_Orientation_Handbook_English.pdf.
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gym conditions were not reported to higher authorities. He responded, “Because nothing
ever changed.” Dkt. No. 13 at 7. When asked to identify the “higher authorities” he believes
the conditions should have been reported to, Gale responded, “All of the higher authorities
within the Department were aware of what was occurring. Internal Affairs, U.S. Dept. of
Justice, Federal Government.” Id.
Defendants argue that the only logical interpretation of Gale’s claim that he filed a
grievance in September 2022 is that he submitted a Step 1 grievance at that time—which
was never returned—or he improperly filed a Step 2 grievance without first completing
Step 1. Dkt. No. 23 at 8. Defendants further contend that even if Gale never received a
response to a Step 1 grievance, he was required to proceed to Step 2 rather than abandon
the grievance process altogether, and that any allegation of unavailability is conclusory. Id.
at 8–9. In support, Defendants rely on Kidd v. Livingston and Dean v. Merchant, cases in
which conclusory assertions that the grievance process was defective or unavailable were
deemed insufficient. Id.
Kidd and Dean were resolved on summary judgment, where the inmate bears a
heightened evidentiary burden. This case, by contrast, is before the Court on a motion to
dismiss based on an affirmative defense, where Gale is not even required to plausibly allege
that he either exhausted available remedies or was excused from doing so because those
remedies were unavailable. As Jones clarified, the burden is on the Defendants to establish
that the elements of their affirmative defense appears clearly on the face of Gale’s
pleadings. 549 U.S. at 216.
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The first question, then, is whether it clearly appears from Gale’s allegations that he
failed to file a Step 1 grievance within fifteen days of the alleged incident or challenged
event. Such a failure does not clearly appear on Gale’s pleadings. Construing reasonable
inferences in Gale’s favor, he appears to claim to have filed at least a Step 1 grievance.
The second question is whether it clearly appears from Gale’s allegations that he
failed to file a Step 2 grievance, appealing the results of his Step 1 grievance. Gale’s
allegations that he filed a grievance but was “still waiting” for the results at the time he
filed suit is tantamount to admitting he did not timely complete Step 2 of the TDCJ
grievance process. When asked if he exhausted “all steps” of the TDCJ grievance
procedure (emphasis added), Gale referenced only a single grievance in September 2022
for which he had yet to receive a response when he filed this suit.4 Otherwise, Gale vaguely
references that several grievances were either “misplaced” by the Grievance Officer or
“have not returned.” Dkt. No. 1 at 3.
These vague assertions that grievances were misplaced or not returned are
insufficient to create uncertainty as to whether Gale exhausted his administrative remedies.
True, Defendants must also show that remedies were available to Gale. But it clearly
appears from Gale’s allegations that the TDCJ grievance process was available to him, that
he invoked it, and that he was awaiting the outcome when he filed suit.5 And Gale’s vague
4 Assuming Gale additionally filed I-60s, the TDCJ Offender Handbook makes clear that I-60s are not part
of the grievance process.
5 Gale’s last day on the gym floor was November 20, 2022. This means he had at the latest until December
5, 2022, to file a Step 1. The Handbook notes that, “[t]he Step 1 process may take up to 40 days from the
date the unit grievance office receives the Step 1 form to respond or 45 days for medical grievances.” See
TDCJ’s Offender Orientation Handbook at 74. Gale filed this action on May 4, 2023, at which time he
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allegations of a “cover up” are belied by his admission that “[a]ll of the higher authorities
within the Department were aware of what was occurring. Internal Affairs, U.S. Dept. of
Justice, Federal Government.” Dkt. No. 13 at 7.
V. CONCLUSION
Because Defendants have demonstrated that Gale’s failure to exhaust appears
clearly on the face of his pleadings, the undersigned RECOMMENDS that Defendants’
Motion be GRANTED.
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
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
claims to have been still awaiting a response to his grievance.
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(5th Cir. 1996).
VII. CASE TRANSFER
Having completed the preliminary screening of Gale’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-00092-H.
ORDERED this 18th day of February 2026.
JOHN R. PARKER
UNITED STATES MAGISTRATE JUDGE
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