Noles v. Akwitti et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
JOHN NOLES,
Institutional ID No. 02163071,
Plaintiff,
v.
AKWITTI, et al.,
Defendants.
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Civil Action No. 1:22-CV-00198-BU1
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Mark Anthony Noles, 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. 23. Defendants now bring a Motion for Summary Judgment asserting qualified
immunity. Dkt. No. 37.
For the reasons below, the undersigned RECOMMENDS that the Court GRANT
Defendants’ Motion.
I. JURISDICTION
Noles 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. 30.
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District of Texas, Abilene Division, because the events giving rise to Noles’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. 9; 28 U.S.C. § 636(b)(1)(B).
II. FACTUAL BACKGROUND
As alleged, Noles and 150–220 other inmates were required to sleep on the floor of
the gym while at the Middleton Unit. Dkt. No. 1 at 6. Noles is one of at least eleven “gym
floor” plaintiffs who allege similar facts. Dkt. No. 23 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 Noles, 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.
Noles arrived at the Middleton Unit on September 30, 2022, and remained there
until his transfer to the Lindsey Unit on November 14, 2022. Dkt. No. 31 at 9. Defendants
allege he was placed in the gym because “Noles is prescribed medications that affect his
ability to withstand heat stress, specifically, medications for a psychiatric condition,
seizures, and hypertension.” Dkt. No. 38 at 9. On Noles’s first day on the gym floor, clinic
notes reflect a “Bunk Assignment Lower Only” in affect since August 2, 2018. Dkt. No.
2 It is not clear from the record whether other parts of the Middleton Unit also had air conditioning at the
time.
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39-1 at 23. Five days later, medical staff at Middleton saw Noles for his intake interview.
Id. at 148. The intake notes Noles’s chief medical complaints as hypertension,
hyperlipidemia, asthma, seizures, and limited range of movement in his left shoulder from
a motor vehicle accident in 2020. Id. at 149 (“Had MVA in 2020- left shoulder limited
ROM.”). The intake also specifically notes “left shoulder pain and limited ROM.” Id.
Despite these documented medical issues and restrictions, Noles was initially required to
sleep directly on the floor with just a blanket for a week and a half before being provided
with a mattress on the floor. Dkt. No. 31 at 6–9.
Noles and the other gym-floor plaintiffs do not complain simply about sleeping on
the floor. This condition was exacerbated by several others. For instance, Noles alleges the
rat infestation was so bad that rats crawled over him and his blankets while he was sleeping.
Dkt. No. 1 at 6. Noles saw rats “pretty much every night” and on one occasion he “had one
under the blanket with [him].” Dkt. No. 31 at 25. There was also rat feces “[a]ll over the
gym floor.” Id. at 26. The huge “sewer rats” were also “in the [food] warmers and they
actually literally stole the food off the trays.” Id. at 37 (cleaned up). Noles alleges that
“[t]here would be rats on the cornbread, and all [the chow hall staff] would do is brush it
off and feed it to [the inmates].” Id. at 26.
Noles also alleges plumbing and bathroom issues. Approximately 200 inmates
shared only two toilets. Id. at 17–18. Sometimes both toilets worked, sometimes only one
worked, and other times there were no functioning toilets at all. Id. During those times,
inmates were forced to defecate on top of several layers of other inmates’s feces. Id. Noles
also explains that a pipe stuck out of the floor and spewed raw sewage out of the bathroom
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and into the sleeping area. Id.
Noles also makes overcrowding allegations stating that with around 200 inmates,
there was “no space to move around.” Id. at 5. His mattress assignment on the floor was
“literally probably about a foot and a half from the next person.” Id. at 10. Because of the
overcrowding, Noles describes the gym as “pretty rowdy” and describes several fights
between inmates or involving officers, although he himself was never assaulted. Dkt. No.
10, 27. But presumably every time an officer used OC spray to break up a fight, all the
inmates in the gym suffered from not having gas masks. See Dkt. No. 14 at 3 (“Yes, [that
adequately describes all of my complaints], except for us getting gassed with OC spray.”).
Lastly, Noles alleges inadequate showers. The gym did not have dedicated shower
facilities, which meant Noles had to walk an eighth of a mile outside to the Unit’s intake
building to take a “freezing shower.” Dkt. Nos. 31 at 31; 1 at 6. Moreover, these “freezing
showers” occurred during the winter months when it was 30 degrees outside. Dkt. No. 31
at 30. And sometimes Noles “got showers every day”, but sometimes “it would take a
week”. Dkt. No. 31 at 31. Whenever it took a while, he and other inmates opted to take
“showers” in the mop closet in the gym. Id. at 15, 31.
Noles saw Akwitti twice during his stay at the gym. Id. at 10. Akwitti normally only
visited when he was called in to review a use of force incident. Id. at 10–11. Although the
conditions were visually apparent, including sewage all over the floor, Noles personally
told Akwitti about the situation with the toilets and showers. Id. at 15. Akwitti would
respond with “we’re working on it” and walk away. Id. at 28. Akwitti was not one to engage
in conversation. Id.
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McCain visited more often, around 8–10 times, also usually after use of force
incidents or to “look around and do nothing.” Dkt. Nos. 14 at 2; 31 at 11. McCain would
laugh when he entered the gym, making Noles feel like McCain thought the horrible
conditions were a joke to him. Dkt. No. 31 at 18. When inmates would ask him about when
they would get out of the gym, McCain would respond with “we’re working on it.” Id. And
when inmates would ask him about getting the toilets fixed, McCain would respond with—
“I got you, dude. They’ll be down here today.”—but maintenance wouldn’t come until a
week later. Id. at 17. Noles’s impression was that McCain was trying to take care of the
conditions, but they never got taken care of. Id. at 12.
Despite these interactions with the wardens, the conditions never improved during
the 45 days Noles was housed on the gym floor. Dkt. No. 14 at 3–4.
Noles brings this §1983 claim against Defendants in their individual capacity
seeking money damages. Dkt. No. 23 at 15 (dismissing all other claims). Noles seeks
$35,000 in punitive damages against each Defendant. Dkt. No. 1 at 4. Noles did not respond
to Defendants’ assertion of qualified immunity.
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). “A genuine dispute of material fact exists if a reasonable jury could
enter a verdict for the non-moving party.” Doe v. Edgewood Indep. Sch. Dist., 964 F.3d
351, 358 (5th Cir. 2020). Typically, the moving party “bears the initial responsibility of . . .
demonstrat[ing] the absence of a genuine issue of material fact.” Jones v. United States,
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936 F.3d 318, 321 (5th Cir. 2019) (cleaned up). The moving party may “identify those
portions of [the record] which it believes demonstrate [that] absence.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
But when a summary judgment movant asserts a qualified immunity defense, 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, 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.
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at 324; see also RSR Corp. v. Int’l Ins. 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.”).
“Qualified immunity shields government officials from liability when they are
acting within their discretionary authority and their conduct does not violate clearly
established statutory or constitutional law of which a reasonable person would have
known.” Gates v. Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 418 (5th
Cir. 2008) (citations omitted). The doctrine protects “all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
IV. ANALYSIS
To overcome Defendants’ assertion of qualified immunity on summary judgment,
Noles 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 Noles 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 of the qualified immunity
analysis—the existence of a constitutional violation. The third and fourth elements relate
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to the second prong of the analysis—a clearly established right. The undersigned will
address each element in turn.
Noles did not produce any evidence in response to Defendants’ Motion. However,
the Court may consider Noles’s verified allegations—including the complaint, response to
the magistrate judge’s questionnaire, and testimony at Noles’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., 391 F.3d 653, 655 (5th Cir. 2004).
1. The First Prong: A Constitutional Violation
a. Eighth Amendment Conditions-of-Confinement Claims
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
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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
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)
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“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
Noles contends that he was forced to: (1) sleep on the floor; (2) including for a week
and a half with no mattress; (3) in a rat-infested gym; (4) with only two toilets that
frequently backed up; (5) that spewed raw sewage into the gym; (6) with inadequate
showers; and (7) in a an environment that was overcrowded with 150–220 inmates sleeping
a foot and a half from each other and frequently physically fighting, all of which constitutes
cruel and unusual punishment. Dkt. No. 31 at 6–10, 17–18, 25–26, 30–31. 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. 31.
i. The gym conditions
The existence of the alleged conditions is undisputed. Defendants instead contend
that the conditions did not operate with a mutually enforcing effect that deprived Noles of
sleep, food, hygiene, or any other identifiable human need. Dkt. No. 38 at 15–19. Their
argument, however, rests almost entirely on cases holding that each condition, considered
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in isolation, does not amount to an Eighth Amendment violation.3 Id. The undersigned
agrees with Defendants to that limited extent: there is little, if any, caselaw supporting the
proposition that any of the alleged conditions, standing alone, constituted a constitutional
violation.
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.
Although Defendants purport to do this, by analyzing the mutually enforcing effect of the
conditions, they draw too much of their support from cases that involve only one
condition—such as the lack of a mattress, or the presence of rats—rather than looking at
cases where multiple conditions interacted together to cause a deprivation. Defendants also
fail to consider whether the conditions—viewed not only collectively, but also over time
and in light of the inmate’s health—had a mutually enforcing effect sufficient to create a
constitutional deprivation.
Given the conditions themselves are undisputed, the undersigned turns next to
3 Mann v. Smith, 796 F.2d 79, 85 (5th Cir. 1986) (“Mann has cited no case holding that the Constitution
requires elevated beds for prisoners, and we know of no source for such a right.”); 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); Gaines v. McDonald, No. 3:12cv404-
JMR, 2013 U.S. Dist. LEXIS 117105, at *11 (S.D. Miss. Aug. 19, 2013) (“Detainees have no right to an
elevated bed.”); 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); Garcia-Perez v. Guerra,
No. 7:22-CV-130, 2024 U.S. Dist. LEXIS 27452, at *19–21 (S.D. Tex. Jan. 17, 2024), report and
recommendation adopted, 2024 U.S. Dist. LEXIS 26387 (S.D. Tex., Feb. 15, 2024) (gnats living on the
surface of toilet and apparent mold on showers and ceilings fail to state a claim of unconstitutional
conditions of confinement); Green v. Ferrell, 801 F.2d 765, 770–771 (5th Cir. 1981) (explaining that even
on a regular, permanent basis, two meals a day may be adequate); Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th
Cir. 1998) (expressing doubt that an inmate who missed 50 meals in five months and lost 15 lbs. established
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”).
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Noles’s preexisting medical conditions before turning to the duration of his exposure to
harm.
ii. Noles’s medical conditions
Defendants acknowledge that Noles was assigned to the gym floor due to his
prescribed medications for a psychiatric condition, seizures, and hypertension, which affect
his ability to withstand heat stress. Dkt. No. 38 at 9. But Defendants do not elaborate on
the process or criteria used in making the gym floor 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.
Several observations within the medical record provide insight into whether the
gym-floor conditions—objectively—posed an unreasonable risk of serious damage to
Noles’s health. For example, five days after being assigned a spot on the gym floor,
Middleton’s intake exam reflected Noles’s chief medical complaints as hypertension,
hyperlipidemia, asthma, seizures, and limited range of movement in his left shoulder from
a motor vehicle accident in 2020. Dkt. No. 39-1 at 149 (“Had MVA in 2020- left shoulder
limited ROM.”). The intake also specifically notes “left shoulder pain and limited ROM.”
Id.
Further, Noles’s records reflect a “Bunk Assignment Lower Only” restriction since
2018. Id. at 23. And yet Noles 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
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restriction and the intake notations of left shoulder pain with limited range of movement,
Noles was assigned a spot on the gym floor; initially sleeping directly on the floor with just
a blanket for a week and a half before being provided with a mattress. Dkt. No. 31 at 7.
All to say, the existence of Noles’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 Noles was objectively exposed to a substantial risk of serious harm.
iii. Duration of Noles’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
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”).
Defendants do not dispute that Noles was assigned a spot on the gym floor for his
entire 45-day stay at Middleton. They also do not dispute that the conditions never
improved during his stay. That Noles endured these conditions for 45 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.
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Here, considering the facts in a light most favorable to Noles, a reasonable jury could find
that he was exposed to the combined conditions for 45 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 45 days. See Hutto, 437 U.S. at 686–87. It must also be remembered that the
sole reason Noles 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
whether the combined conditions—rats, no mattress for a week and a half, no bunk or cot,
overcrowding, backed up plumbing, infrequent cold showers—had a mutually enforcing
effect of objectively depriving Noles 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) Noles’s medical conditions when assigned to the gym; and (b) the duration
of Noles’s exposure to the gym conditions. Harris, 861 F. App'x at 582. Noles’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 Noles was objectively
exposed to a substantial risk of serious harm, the undersigned turns now to whether Noles
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can show genuine disputes on whether each warden acted with deliberate indifference to
that risk.4 See Farmer, 511 U.S. at 834. The undersigned begins with Akwitti.
i. Warden Akwitti’s subjective indifference
Noles asserts that Akwitti was directly aware of the conditions in the gym.
According to Noles, he saw Akwitti in the gym on two occasions and “personally told him
about the toilets and the showers and stuff like that.” Dkt. No. 31 at 10, 15. Akwitti would
respond with something along the lines of “we’re working on it.” Id. at 28. Noles also
contends that Akwitti knew about the conditions because each time he visited, the
conditions were apparent and obvious. Id. at 15 (“He knew about the conditions, do you
know what I’m saying, that the toilets were backing up, and he could see the sewage all
over the floor. So I mean I know he knew about it.”) (cleaned up).
Combined with Noles’s allegation that the conditions never improved, the verified
pleadings could reasonably support a finding that Akwitti personally visited the gym on at
least two occasions 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
4 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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assigned to the gym. Defendants admit that because of Noles’s prescription medications
causing a heat sensibility, he was assigned to the gym floor. Dkt. No. 38 at 9. 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 Noles, faced heightened medical risks if
confined under other adverse conditions, including those that were unsanitary,
overcrowded, unsafe, or otherwise unhealthy.
The duration of Noles’s stay further strengthens the inference of deliberate
indifference. A reasonable jury could conclude that Akwitti had ample opportunity during
those 45 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 Noles 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 “took reasonable
measures to abate pests and repair amenities, and therefore were not deliberately indifferent
to such risk.” Dkt. No. 38 at 19. But as Defendants note, 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
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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
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. 38 at 20. 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 150–220 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 150–220 inmates were forced to sleep on the floor—which also has support
in the summary judgment evidence—then are five pest control treatments reasonable?5
Given the variables involved, the answers to these questions are difficult to resolve
5 Several entries in the records tend to corroborate Noles’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. 39-1 at 240 (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
242 (cleaned up). Another states, “Water on ground in kitchen. Horrible smell. Removed a dead rat from
kitchen.” Id. at 239. Another states, “Kitchen needs cleaning. Water and food on ground. All housing areas
needs to be cleaned.” Id. at 238. And yet another states, “Dirty and wet. Food all over ground. Food swept
into piles. Trash laying around.” Id. at 243 (cleaned up).
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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. 39-1 at 180–234. Of the
remaining 12 repairs to the inmate portion of the gym, only three of those were made during
the time Noles might have been assigned to the gym. And all three were made on the same
day, November 9, 2022. Id. at 207. While it is possible that three plumbing repairs on a
single day were a reasonable response to the gym’s plumbing problems during the 45 days
Noles 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. 38 at 20. Again, context is important.
The record supports that pest control services visited the Middleton Unit five times from
September through December. Dkt. No. 39-1 at 237–44. But the record only supports that
the gym was treated on one of those occasions, on September 6. Id. at 240.
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
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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,
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 Noles’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 Noles, 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, Noles alleges McCain visited the gym
around 8–10 times. Dkt. No. 14 at 2. McCain’s visits were usually in response to use of
force incidents that broke out in the gym. Dkt. No. 31 at 11. According to Noles, McCain
would laugh when he entered the gym, making Noles feel like McCain thought the horrible
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conditions were a joke to him. Id. at 18. When inmates would ask him about when they
would get out of the gym, McCain would respond with “we’re working on it.” Id. Noles’s
impression was that McCain was trying to take care of the conditions, but they never got
taken care of. Id. at 12.
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 Noles 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 Noles complains of.
Moreover, viewing the facts in the light most favorable to Noles, 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.
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 Noles, 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
or mental health condition or treatment; (3) McCain was aware of the adverse conditions
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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 Noles’s favor, the undersigned
turns now to whether Noles’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 Defendants’ conduct was objectively unreasonable.
Defendants urge that even assuming arguendo that the Court finds sufficient
evidence of a constitutional violation, “Noles has not met his burden to identify a case in
which an officer acting under similar circumstances was held to violate the Constitution.”
Dkt. No. 38 at 21. They continue, “the variety of cases required to analyze Noles’ claims
suggests that there is no such case squarely governing the facts as alleged by Noles” and
that the facts do not satisfy the “sky high” standard for obviousness. Id. at 22. The
undersigned agrees.
“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, Noles
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 Noles’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 Noles 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 Noles was
exposed to those conditions, and Noles’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, Noles 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 Noles 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 Noles 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.
Noles 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.
Noles 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, Defendants are entitled to qualified immunity.6
6 In Noles’s complaint, he seeks punitive damages and states that “[n]ot all punitive damage awards require
physical assault.” Dkt. No. 1 at 4, 6. Defendants’ Motion spends a lot of time refuting the existence of a
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V. CONCLUSION
The facts, when viewed in the light most favorable to Noles, would permit a
reasonable jury to find that Noles was objectively exposed to a substantial risk of serious
harm and that Defendants were subjectively indifferent to that risk. But the Court should
conclude that Noles’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
compensable injury under the PLRA. Dkt. No. 38 at 9–10, 15–19, 22–23. Because Defendants are entitled
to qualified immunity, they are immune from suit, and this case should be dismissed. Noles’s injury, if any,
is irrelevant.
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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 Noles’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. 1:22-CV-00198-H.
ORDERED this 27th day of January 2026.
JOHN R. PARKER
UNITED STATES MAGISTRATE JUDGE
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