Plemmons v. Akwitti et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
DENNIS WAYNE PLEMMONS,
Institutional ID No. 2397707,
Plaintiff,
v.
AKWITTI, et al.,
Defendants.
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Civil Action No. 1:23-CV-00212-BU1
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Dennis Wayne Plemmons, 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. 15. Defendants now bring a Motion for Summary Judgment asserting qualified
immunity. Dkt. No. 25.
For the reasons below, the undersigned RECOMMENDS that the Court GRANT
Defendants’ Motion.
I. JURISDICTION
Plemmons 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
1 This case was stayed and administratively closed, then reopened and the stay lifted on November 22, 2024.
Dkt. No. 20.
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Northern District of Texas, Abilene Division, because the events giving rise to Plemmons’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. 8; 28 U.S.C.
§ 636(b)(1)(B).
II. FACTUAL BACKGROUND
As alleged, Plemmons and more than 100 other inmates were required to sleep on
the floor of the gym while at the Middleton Unit. Dkt. Nos. 1 at 4; 14 at 7. Plemmons is
one of at least eleven “gym floor” plaintiffs who allege similar facts. Dkt. No. 15 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 3. Each plaintiff, including Plemmons,
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.
Plemmons arrived at the Middleton Unit on August 14, 2022, and remained there
until his transfer to the Lindsey Unit on or about September 14, 2022.3 Dkt. Nos. 14 at 1;
2 It is not clear from the record whether other parts of the Middleton Unit also had air conditioning at the
time.
3 Plemmons asserts that he was on the gym floor at the Middleton Unit from August 14, 2022, until
September 25, 2022. Dkt. No. 14 at 1. However, Defendants’ competent summary judgment evidence
refutes this transfer date and instead reflects a medical transfer screening at the Lindsey Unit on September
14, 2022. Dkt. No. 27-1 at 134.
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27-1 at 134. Approximately a month and a half prior to Plemmons’s gym-floor placement,
he underwent an intake history and health screening. This screening noted that Plemmons
had a heart attack in 2001 that required stents. Dkt. No. 27-1 at 149. He also had knee
surgery in 2001 and foot surgery in 2016. Id. at 150. The screening further noted his current
medical complaint as a hernia and noted that he had difficulty standing for long periods of
time. Id.
Three days after arriving at the Middleton Unit, a transfer screening document
acknowledged a “Bunk Assignment Lower Only” in affect since 2014. Id. at 142. The
screening also noted further restrictions including: (1) no lifting more than ten pounds; (2)
no walking on wet/uneven surfaces; (3) no working in direct sunlight; (4) no temperature
extremes; (5) no humidity extremes; and (6) no working around machinery with moving
parts. Id. The Middleton Unit screening also reflected hypertension, hyperlipidemia, heart
disease, heart failure, and abdominal hernia since 2015. Id. at 139. Despite these
documented medical issues and restrictions, Plemmons was required to sleep on a mattress
on the gym floor for his entire 31-day stay at the Middleton Unit. Dkt. Nos. 1 at 4; 14 at
2.
Plemmons and the other gym-floor plaintiffs do not complain simply about sleeping
on the floor. This condition was exacerbated by several others. For instance, Plemmons
alleges that the gym did not provide adequate hygienic facilities. Over 100 inmates had to
share just one urinal and two toilets; all of which were not in great working condition and
spewed raw sewage onto the floor. Dkt. No. 14 at 7. Because of this, inmates would track
raw sewage from the bathrooms across the gym floor where inmates slept. Id. Furthermore,
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trash was taken out only once a week and all three trash cans were often overflowing. Id.
These unhygienic conditions fueled a rat and fly infestation. And although inmates were
subject to these conditions without being provided with cleaning supplies, they were only
allowed to shower every two to three days. Id. at 3.
Plemmons alleges that Akwitti did a walkthrough of the gym “at least twice a week”
and that each time Plemmons informed Akwitti that his hernia caused him pain from “being
on the floor.” Id. at 6. Plemmons also alleges he saw McCain every other day and similarly
informed him each time that getting up and down off the floor caused his hernia pain. Id.
Despite these interactions with the wardens, the conditions never improved during the 31
days Plemmons was housed on the gym floor. Id. at 3.
Plemmons brings this §1983 claim against Defendants in their individual capacity
seeking money damages. Dkt. No. 15 at 13 (dismissing all other claims). Plemmons seeks
$35,000 in “damages” against each Defendant. Dkt. No. 1 at 4. Plemmons 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). “[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).
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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
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.
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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.
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,
Plemmons 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 Plemmons 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
to the second prong of the analysis—a clearly established right. The undersigned will
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address each element in turn.
Plemmons did not produce any evidence in response to Defendants’ Motion.
However, the Court may consider Plemmons’s verified allegations 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
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
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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)
“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)
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(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
Plemmons contends that he was forced to: (1) sleep on the floor; (2) in a rat and
fly-infested gym; (3) with at least 100 other inmates; (4) who shared only one urinal and
two toilets that frequently backed up; (5) that spewed raw sewage that was tracked into the
sleeping quarters; and (6) that inmates were provided with inadequate showers, all of which
constitutes cruel and unusual punishment. Dkt. No. 14 at 2–3, 7. 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. 14.
i. The gym conditions
The existence of the alleged conditions is undisputed. Defendants instead place
undue weight on Plemmons’s assertion that “this claim is about my hernia.” Dkt. No. 14 at
7. In focusing on this, Defendants only address the singular condition of sleeping on the
floor and entirely disregard all other allegations. See generally Dkt. No. 26. Defendants
cite three cases for the premise that there is no Constitutional right to sleep on an elevated
bed. Id. at 12. They continue that Plemmons was not objectively exposed to a substantial
risk of harm by the lack of a raised bed because the existence of pain from a hernia does
not create such a substantial risk. Id. at 13. They also contend that Defendants were not
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deliberately indifferent to the risk—assuming it existed—because Plemmons only
informed them, allegedly, of general pain. Id. The argument goes that if Defendants were
only aware of general pain, then they did not have sufficient facts to draw an inference that
sleeping on a mattress on the floor posed a substantial risk of harm to Plemmons. Id. at 14.
The undersigned agrees with Defendants to that limited extent: that a mattress on
the floor, standing alone, generally does not constitute a constitutional violation. However,
Defendants erred in not addressing all the conditions Plemmons complained about. In just
a few short sentences, Plemmons mentioned in his complaint that he was required to sleep
on the floor and that his existing hernia was aggravated. Dkt. No. 1 at 4. The undersigned
then asked Plemmons in a questionnaire to “provide any additional information relating to
[his] claims that has not already been addressed [in the complaint].” Dkt. No. 14 at 7
(emphasis in original). Plemmons answered that, “[t]his claim is about my hernia but there
were other conditions that could possibly have been detrimental to not only my physical
health but mental health as well.” Id. He continues with a page-long description of the other
deplorable conditions in the gym that were not related to his sleeping on the floor. Id.
The undersigned construes Plemmons verified pleadings as a complaint against the
general conditions he was subjected to in the gym. Plemmons likely focused on his hernia
believing he had to show an actual injury to recover and because the questionnaire’s
emphasis on “relating to your claims” prompted Plemmons to assert that the other
conditions were merely related to his claims, not his actual claims. Nonetheless, Plemmons
asserted that the other conditions that were present could have possibly been detrimental
to his physical health; i.e. that they posed a substantial risk of harm. Therefore, Defendants
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should have addressed how all Plemmons’s allegations, together, created an unsafe
environment.
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. Because
Defendants focus almost exclusively on Plemmons’s hernia claim, they draw too much of
their support from cases that involve only one condition—the lack of a raised bed—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
Plemmons’s preexisting medical conditions before turning to the duration of his exposure
to harm.
ii. Plemmons’s medical conditions
Several observations within the medical record provide insight into whether the
gym-floor conditions—objectively—posed an unreasonable risk of serious damage to
Plemmons’s health. For example, just a month and a half before his placement on the gym
floor, Plemmons’s medical record documents prior surgeries for a heart attack as well as
surgeries on his knee and foot. Dkt. No. 27-1 at 149–150. That same screening notes his
current medical complaint as a hernia and further notes that he had difficulty standing for
long periods of time. Id.
Then, shortly after arriving at the Middleton Unit, Plemmons’s record reflects
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hypertension, hyperlipidemia, heart disease, heart failure, and an abdominal hernia since
2015. Id. at 139. This screening also notes further restrictions including: (1) no lifting more
than ten pounds; (2) no walking on wet/uneven surfaces; (3) no working in direct sunlight;
(4) no temperature extremes; (5) no humidity extremes; and (6) no working around
machinery with moving parts. Id. at 142.
Plemmons’s records also reflects a “Bunk Assignment Lower Only” restriction since
2014. Id. And yet Plemmons 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.
Dkt. Nos. 1 at 4; 14 at 2. In that respect, the floor is no better than an upper bunk.
All to say, the existence of Plemmons’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 Plemmons was objectively exposed to a substantial
risk of serious harm.
iii. Duration of Plemmons’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
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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 Plemmons was assigned a spot on the gym floor for
his entire 31-day stay at Middleton. They also do not dispute that the conditions never
improved during his stay. That Plemmons endured these conditions for 31 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 Plemmons, a reasonable
jury could find that he was exposed to the combined conditions for 31 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 31 days. See Hutto, 437 U.S. at 686–87. It must also be
remembered that the sole reason Plemmons 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, flies, no bunk or cot, overcrowding, backed up
plumbing, infrequent cold showers—had a mutually enforcing effect of objectively
depriving Plemmons 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)
Plemmons’s medical conditions when assigned to the gym; and (b) the duration of
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Plemmons’s exposure to the gym conditions. Harris, 861 F. App'x at 582. Plemmons’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 Plemmons was objectively
exposed to a substantial risk of serious harm, the undersigned turns now to whether
Plemmons 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
Plemmons asserts that Akwitti was directly aware of the conditions in the gym.
According to Plemmons, Akwitti did a walkthrough of the gym “at least twice a week” and
during each walkthrough Plemmons informed Akwitti that his hernia caused him pain from
“being on the floor.” Dkt. No. 14 at 6.
Combined with Plemmons’s allegation that the conditions never improved, the
verified pleadings could, construed in Plemmons’s favor, 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,
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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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. As discussed above, Plemmons had various heat restrictions including
no temperature extremes, no humidity extremes, and no working in direct sunlight. Dkt.
No. 27-1 at 142. Due to his heat sensitivity, he, along with more than 100 other inmates,
were assigned to the gym floor because the gym was air-conditioned. 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 Plemmons, faced heightened medical risks if
confined under other adverse conditions, including those that were unsanitary,
overcrowded, unsafe, or otherwise unhealthy.
The duration of Plemmons’s stay further strengthens the inference of deliberate
indifference. A reasonable jury could conclude that Akwitti had ample opportunity during
those 31 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 Plemmons 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,
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861 F. App’x at 586 (Haynes J., concurring in part).
Defendants advance one principal argument here: they did not have subjective
knowledge of any facts that would lead to an inference that Plemmons faced a substantial
risk of harm from sleeping on a mattress on the floor. Dkt. No. 26 at 13–14. However, as
discussed above, Defendants erred in only acknowledging the condition regarding the lack
of a raised bed. Instead, several other conditions “relating to [Plemmons’s] claims” “could
possibly have been detrimental to not only [Plemmons’s] physical health but mental health
as well.” Dkt. No. 14 at 7. In other words, Plemmons asserts that not only did getting up
and down from the floor posed a risk to his physical health, but the other conditions present
in the gym also posed a risk to his health.
Construed in Plemmons’s favor, the allegations related to the unhygienic nature of
the other conditions Plemmons complained of—rats, flies, overflowing trash, inoperative
toilets, sewage tracked across the gym, few shower opportunities, and overcrowding—
would have been readily apparent to any officer upon entering the gym. Thus, genuine
disputes remain about what Akwitti knew and when he knew it.
Thus, based on the summary judgment evidence, a reasonable jury could find: (1)
Akwitti was aware that a large number of inmates, including Plemmons, 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 31 days; and (5)
that 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
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whether Akwitti acted with deliberate indifference.
ii. Assistant Warden McCain’s subjective indifference
Turning now to Assistant Warden McCain, Plemmons asserts that McCain was
directly aware of the conditions in the gym. Plemmons alleges McCain visited the gym
every other day and that Plemmons informed him each time that getting up and down off
the floor caused his hernia pain. Dkt. No. 14 at 6. If a reasonable jury finds the conditions
existed as Plemmons 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.
Moreover, viewing the facts in the light most favorable to Plemmons, 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 and therefore never improved.
Thus, as with Akwitti, a reasonable jury could find: (1) McCain was aware that a
large number of inmates, including Plemmons, 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 in the gym; (4) McCain was aware the conditions persisted for 31 days; and (5)
that 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 Plemmons’s favor, the
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undersigned turns now to whether Plemmons’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, “Plemmons 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
Plemmons’ claims suggests that there is no such case squarely governing the facts as
alleged by Plemmons” 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
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
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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:
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).
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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,
Plemmons has not filed a response to the Motion.
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 Plemmons’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
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the source of clearly established law for qualified immunity analysis”).
To find that Plemmons 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 Plemmons was
exposed to those conditions, and Plemmons’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, Plemmons 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
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 Plemmons pointed to a body of law that would put the
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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 Plemmons 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
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.
Plemmons 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
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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.
Plemmons can show genuine issues of material fact as to the first prong analysis—
the existence of a constitutional violation—but not as to the second prong analysis—a
clearly established right. Therefore, Defendants are entitled to qualified immunity.5
V. CONCLUSION
The facts, when viewed in the light most favorable to Plemmons, would permit a
reasonable jury to find that Plemmons 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 Plemmons’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
5 In Plemmons’s complaint, he seeks “damages” in the amount of $35,000 against each Defendant. Dkt.
No. 1 at 4. Because Defendants are entitled to qualified immunity, they are immune from suit, and this case
should be dismissed. Plemmons’s injury, if any, is irrelevant.
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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
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 Plemmons’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-00212-H.
ORDERED this 29th day of January 2026.
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JOHN R. PARKER
UNITED STATES MAGISTRATE JUDGE
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