Welsh v. Lubbock County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

LONNIE KADE WELSH,

Institutional ID No. 27818

Plaintiff,

Vv. No. 5:19-CV-00255-H

LUBBOCK COUNTY, etal,

Defendants.

ORDER ACCEPTING THE FINDINGS, CONCLUSIONS, AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

This lawsuit arises out of Plaintiff's short-term, pretrial confinement in the Lubbock

County Detention Center (LCDC). Plaintiff sued eight Defendants alleging a variety of

constitutional violations under 42 U.S.C. § 1983. He seeks monetary damages.

United States Magistrate Judge D. Gordon Bryant made findings, conclusions, and a

recommendation (FCR) in this case. (Dkt. No. 20.) Judge Bryant recommended that the

Court dismiss all but one of Plaintiffs claims with prejudice for failure to state a claim.

Specifically, Judge Bryant recommended that only Plaintiff's claim against Defendant

Sergeant K. Young, in his individual capacity, should proceed through the course of

litigation—that is, that the Court should require Defendant Young to answer or otherwise

plead to Plaintiff's claim for a procedural due process violation arising from Plaintiff's

placement in administrative segregation’ without a hearing. Plaintiff filed objections. (Dkt.

No. 23.’)

1 Referred to as “SHU” (for Special Housing Unit) in the FCR.

? Page references to this document refer to the page number assigned as docketed in ECF, as

opposed to the page numbers handwritten by Plaintiff.

“The district judge must determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C.

§ 636(b)(1). In contrast, the district judge reviews any unobjected-to findings, conclusions,

and recommendations for plain error. The Court need not consider frivolous, conclusive, or

general objections. See Battle v. U.S. Parole Com’n, 834 F.2d 419 (Sth Cir. 1987), overruled on

other grounds by Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (Sth Cir. 1996). The Court

has examined the record and reviewed the unobjected-to portions of the FCR for plain error

and, finding none, expressly accepts and adopts those portions of the Magistrate Judge’s

findings, conclusions, and recommendation.

Additionally, in light of Plaintiff's specific objections, the Court has conducted a de

novo review of the relevant portions of the FCR and the record in this case. Many of

Plaintiff's objections are either restatements of arguments made in his complaint (as

supplemented by his response to the Court’s questionnaire), arguments thoroughly

addressed by the FCR, conclusory statements, or mere disagreements with the Magistrate

Judge’s wording. Thus, except as supplemented below, the Court expressly accepts and

adopts the findings, conclusions, and recommendation of the United States Magistrate

Judge. Plaintiff's objections—except his objection to the omission of analysis regarding his

claim that he was deprived of access to newspapers—are overruled.

1. Plaintiffs Claims

Plaintiff is an experienced and determined litigant who has filed more than a dozen

federal civil actions challenging various aspects of his confinement in different institutions

over the past several years. Plaintiff was a civil detainee in the Texas Civil Commitment

Center when he filed this suit, proceeding pro se and in forma pauperis. His allegations,

however, stem from his confinement as a pretrial detainee in the Lubbock County

Detention Center (LCDC) between December 4, 2017 and January 8, 2018.

He sues Lubbock County, Lubbock County Sheriff Kelly Rowe, Chief Jail

Administrator C. Scott, Sergeant Payne, Sergeant K. Young, Sergeant McDaniel, Captain

Ron Jenkins, and an Unknown Jail Officer (identified as Lubbock County Jail Radio

Number 8281). Plaintiff sues Defendants Rowe and Scott in their individual and official

capacities; all others are sued solely in their individual capacities.

Plaintiff's claims stem entirely from either the decision to place him in administrative

segregation or the alleged conditions he encountered while there. Plaintiffs claims are

summarized as follows:

a. Defendant Young impermissibly punished Plaintiff by placing him in

administrative segregation without a hearing based solely on his status as an

adjudicated Sexually Violent Predator (SVP)—and ostensibly Young's

personal animus toward Plaintiff—in violation of his rights to substantive and

procedural due process;

b. Defendant Jenkins failed to provide him notice and a hearing regarding a

review of his administrative segregation placement after 15 days in violation

of his procedural due process rights;

c. Defendants Jenkins and Payne were deliberately indifferent to

unconstitutionally unsanitary conditions of his confinement in administrative

segregation, including (1) a cell that had mold growing on the shower (for

which he was provided inadequate cleaning supplies), (2) provision of only

one set of clothing at a time (exchanged on Mondays and Thursdays), and

(3) failure to provide him undergarments free of charge;

d. Defendants McDaniel and Unknown Jail Officer were deliberately indifferent

to Plaintiffs need for hot meals;

Defendant Payne allowed him only 20 minutes of recreation, three days per

week, in violation of his rights to procedural and substantive due process,

equal protection, and to “not to be punished in an unusual manner;”

f. Defendants Payne, McDaniel, and Unknown Jail Officer denied him access

to news and information, and limited his phone use while he was housed in

administrative segregation; and

d. Defendant Lubbock County, through Defendants Rowe and Scott, failed to

train and supervise the other Defendants, and were deliberately indifferent to

his constitutional rights by implementing the policies, practices or customs

that allowed the violations described in his complaint.

The Magistrate Judge’s Findings, Conclusions, and Recommendation

The Magistrate Judge reviewed Plaintiffs claims as described in his complaint.

Additionally, Plaintiff was permitted to supplement his complaint with responses to a

questionnaire designed to allow Plaintiff a chance to further develop his claims and to assist

in the judicial screening process. See Watson v. Ault, 525 F.3d 886, 893-94 (Sth Cir. 1976).

The Magistrate Judge also received and reviewed authenticated records from Lubbock

County, including relevant classification and housing reports, incident reports, maintenance

work order requests, laundry-exchange procedures, daily log reports, administrative

grievances, call detail reports, and a medical summary with supporting medical records. See

Wilson v. Barrientos, 926 F.2d 480, 483-84 (5th Cir. 1991); Banuelos v. McFarland, 41 F.3d

232, 234 (5th Cir. 1995). The Magistrate Judge accepted the facts stated by Plaintiff in his

complaint and answers to the questionnaire as true. However, the Court does not accept as

true “[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory

statements.” City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 153 (Sth Cir. 2010)

(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

After this screening, the Magistrate Judge recommended that only Plaintiff's

procedural due process claim against Defendant K. Young should proceed through the

course of litigation. The Magistrate Judge found that Plaintiff otherwise failed to state

viable claims and recommended that the Court dismiss Plaintiff's other claims with

prejudice.

Plaintiff's Objections

Plaintiff filed handwritten objections totaling 82 pages with attachments. (Dkt. No.

23.) In his objections, Plaintiff recounts portions of the FCR and his pleadings. Plaintiff

attempts to further clarify the factual basis of his claims and rehashes his claims with

additional support from a variety of cases—most of which are inapposite to his claims.

Plaintiff also submitted several exhibits in support of his objections including relevant

grievance forms and a statement under penalty of perjury regarding the lack of

undergarments. Plaintiff concluded his objections with a request for leave to amend his

complaint in order to cure the deficiencies identified in the FCR.

As previously explained, the Court will only address those objections that require

further discussion.

A. Due Process and Administrative Segregation

Plaintiff claims that Defendants Young and Jenkins violated his substantive and

procedural due process rights under the Fourteenth Amendment by placing him in

administrative segregation without a hearing for 34 days between December 5, 2017, and

January 8, 2018. Specifically, he alleges that Defendant Young placed him in

administrative segregation based solely on his status as an adjudicated Sexually Violent

Predator (SVP), and “to punish him for past crimes.” (See Dkt. No. 1 at 3; Dkt. No. 19 at

3.) He also complains that Defendant Jenkins responded to his grievances regarding his

placement in administrative segregation, but he did not review Plaintiff's placement after 15

days according to Texas Department of Criminal Justice (TDCJ) policy. (Dkt. No. I at 4.).

Plaintiff expanded on his allegations against Young in response to the questionnaire,

stating that he knew the placement was punitive because Young “came in and told [him] as

much.” (See Dkt. No. 19 at 2.) And Plaintiff specifically alleges that Young explained that

“he didn’t have to do any of this that he just wanted to.” Jd. The Magistrate Judge found

that Plaintiff had stated sufficient facts to survive screening on his claim against Defendant

Young—primarily based upon Plaintiffs allegation that Young told him he did not have to

put him in administrative segregation but did it because he wanted to. (Dkt. No. 20 at 8-9.)

Plaintiff did not object to this portion of the Magistrate Judge’s report.

“Pretrial detainees, unlike convicts, have a liberty interest in avoiding punishment—

an interest that derives from the Constitution itself.” Surprenant v. Rivas, 424 F.3d 5, 17

(1st Cir. 2005). But not every restriction imposed during detention “amounts to punishment

in the constitutional sense.” Bell v. Wolfish, 441 U.S. 520, 537 (1979). “[T]here is, of course,

a de minimis level of imposition with which the Constitution is not concerned.” Hamilton v.

Lyons, 74 F.3d 99, 106 (citing Bell, 441 U.S. at 539 n.21). Additionally, “Trjestraints that are

reasonably related to the institution’s interest in maintaining jail security do not, without

more, constitute unconstitutional punishment, even if they are discomforting and are

restrictions that the detainee would not have experienced had he been released while

awaiting trial.” Bell, 441 U.S. at 540. Whether such a reasonable relation exists 1s

“peculiarly within the province and professional expertise of correction officials, and, in the

absence of substantial evidence in the record to indicate that the officials have exaggerated

their response to these considerations, the courts should ordinarily defer to their judgment in

such matters.” Jd. at n.23 (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).

Although the Court is not convinced that Young’s alleged comments alone are

sufficient to establish that Plaintiff's placement in administrative segregation amounted to

impermissible punishment without due process (as opposed to a restraint reasonably related

to the institution’s interest in maintaining jail security), the Court finds that the record must

be further developed on that claim. Finding no plain error, the Court accepts the Magistrate

Judge’s recommendation and will direct service on Defendant Young by separate order.

On the other hand, the FCR also concluded that Plaintiff failed to state a claim

against Defendant Jenkins because violations of jail policy or state law, standing alone,

cannot form the basis of a Section 1983 claim. (Dkt. No. 20 at 9.) And, in any event,

Plaintiff was confined in the LCDC—not TDCJ—so any TDCJ requirement for reviewing

housing placement every 15 days are inapplicable to Defendant Jenkins’ actions. (/d.)

Plaintiff objected to the FCR’s characterization of his claim against Jenkins as solely

based on the TDCJ rules. He points out that he also alleged Jenkins violated his due

process rights by failing to provide him notice and hearing related to the subsequent reviews

of his placement.’ (See Dkt. No. 23 at 16.) He contends that Jenkins—who answered

Plaintiff's grievances about the housing classification—was clearly indifferent to the

procedural requirements of the Constitution. (See id. at 16.) Further, Plaintiff argues that

although Young caused the initial deprivation, Jenkins could have—but failed to—cure it by

3 The Court notes that the FCR erroneously states that Defendant Jenkins reviewed Plaintiff's

placement on those dates, but both the questionnaire and authenticated records indicate that the

review was performed by Defendant Young. (See Dkt. No. 17 at 4; Dkt. No. 19 at 3.) Defendant

Jenkins’s involvement was limited to his responses to Plaintiff's grievances. But the error does not

change the analysis of this claim. ,

providing him notice of his review and a hearing on his continued placement in

administrative segregation. (See id. at 16-17.)

The Court sustains Plaintiffs objection to the FCR’s omission of his supplemented

claims against Jenkins but finds that it does not change the conclusion. Indeed, the Court

notes that Plaintiff's claim against Defendant Jenkins was supplemented in response to the

questionnaire, where the Magistrate Judge noted—based upon the authenticated records—

that reviews had been completed on December 17, 2017, and January 2, 2018. (See Dkt.

No. 17 at 2.) In his response, Plaintiff wrote “how would I know if he reviewed that status

of me being an SVP or not. I was not provided notice. I was not provided a hearing. I was

not allowed to speak upon my STATUS. Nor was I even provide results of his review and

what factual determinations was made [all sic].” (See Dkt. No. 19 at 3.) Consequently,

Plaintiff complains that he was unable to appeal the result under the procedures described in

Texas Administrative Code 271.4. (See id. at 3-4.)

Plaintiff relies on Hewitt v. Helms, 459 U.S. 460, 476 (1983), for the proposition that

he was entitled to notice and a hearing when his housing status was reviewed. (See Dkt. No.

23 at 16.) But the Supreme Court has abrogated Hewitt’s methodology. Wilkinson v.

Austin, 545 U.S. 209, 222-23 (2005). And both Wilkinson and Hewitt are distinguishable

from this case because they involved inmates who were in administrative segregation based

on disciplinary proceedings—not for security purposes. Moreover, the Fifth Circuit has

held that ‘absent extraordinary circumstances, administrative segregation as such, being an

incident to the ordinary life of a prisoner, will never be a ground for a constitutional claim”

because it “simply does not constitute a deprivation of a constitutionally cognizable liberty

interest.” Pichardo v. Kinker, 73 F.3d 612, 613 (Sth Cir. 1996) (emphasis added). While the

Fifth Circuit has not definitively identified what constitutes “extraordinary circumstances,”

it has concluded that such restrictions as limiting recreation time, requiring a prisoner to be

handcuffed when leaving his cell, denying dessert and other limitations were not

extraordinary. See Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998); Wilkerson v. Stalder, 329

F.3d 431, 436 (5th Cir. 2013) (remanding the case because serving 30 years in lockdown

might qualify as extraordinary circumstances).

But the Fifth Circuit has found that being placed in administrative segregation after

being “improperly classified as a safety risk” and being denied a hearing about being placed

in segregation does not implicate a liberty interest. Huffv. Thaler, 518 F. App’x. 311 (Sth

Cir, 2013) (citing Hernandez v. Velasquez, 522 F.3d 556, 562-64 (Sth Cir. 2008)). Even in the

pretrial detainee context, the Fifth Circuit accords “the widest possible deference” in

classifying inmates as necessary “‘to maintain security and preserve internal order.’” Perez v.

Anderson, 350 F. App’x 959, 962 (5th Cir. 2009) (per curiam) (quoting Hernandez at 561 (Sth

Cir. 2008)).

Simply put, Plaintiffs placement in administrative segregation did not implicate any

constitutionally cognizable liberty interest. Although his complaint also includes many

allegations regarding the conditions of his confinement in administrative segregation, he has

not shown the existence of extraordinary circumstances. In this case, plaintiff admits that

he is, in fact, an adjudicated SVP. And his conclusory argument that any safety concerns

could be addressed simply by housing him with other sex offenders is unpersuasive.

Finally, although the Court will order Defendant Young to answer Plaintiffs claim

that the decision to place him in administrative segregation was based upon a punitive

motive, Plaintiff has not alleged that Defendant Jenkins’s actions—or inactions—were

similarly motivated. Jenkins responded to Plaintiff's grievances with an explanation that his

placement in administrative separation was not disciplinary and did not require due process.

Plaintiff has not alleged any facts to suggest that Jenkins could have, or should have, taken

further action. And, as the Magistrate Judge pointed out, Plaintiffs placement was

reviewed, twice, by Defendant Young. Moreover, to the extent Plaintiff's claim may be

liberally construed to complain about Jenkins’s handling of his grievance, the claim must

also fail. Inmates do not have a federally protected liberty interest in having grievances

resolved to their satisfaction. See Geiger v. Jowers, 404 F.3d 371, 373-74 (Sth Cir. 2005).

Thus, the Court overrules Plaintiff's objection and accepts the Magistrate’s recommendation

that his claim against Defendant Jenkins be dismissed for failure to state a claim.

B. Denial of Access to Newspaper

The Magistrate Judge thoroughly analyzed Plaintiff's claims regarding his cell

conditions, clothing, food quality, and restrictions on recreation and phone use, as well as

denial of access to news and information via television and radio. (See Dkt. No. 20 at 10-

22). Plaintiff's objections on those claims are overruled. But, as Plaintiff points out in his

objections to the FCR, the Magistrate Judge did not address his claim that he was denied

access to news and information via newspaper in violation of his First Amendment Rights.

(See Dkt. No. 23 at 44.)

Plaintiff claims that Defendants Payne, McDaniel, and Unknown Jail Officer

violated his rights while he was in administrative segregation after he informed them of his

“First Amendment right to news and information by television, radio, or newspaper with no

other alternative to provide for said rights.” (Dkt. No. 1 at 8.) Plaintiff asserts that Payne,

McDaniel, and Unknown Officer were deliberately indifferent to his First Amendment

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rights, as well as his Equal Protection rights under the Fourteenth Amendment. (See id. at

8-9.) He expanded on his claims in response to the questionnaire, contending that his First

Amendment rights were violated because having no access to the information and

knowledge of the world had a “chilling effect” on his speech and ideas, that he had to guess

at the state of the world, and that he lost the right to be informed and to make choices by

that information or to have discourse in the social and political spheres. (See Dkt. No. 19 at

14.) He claims that denying him the right to news amounted to impermissible punishment

under the Fourteenth Amendment. (See Dkt. No. 19 at 15.) And he raises Equal Protection

claims, alleging that every other inmate in the LCDC—except those in administrative

segregation—had access to news and information. (See Dkt. No. 23 at 50-52.)

Plaintiff asserts that the Defendants must establish the necessary relationship

between prison security and disparate treatment of residents in administrative segregation.

(See id. at 53.) Moreover, Plaintiff argues that he is not required to satisfy both the objective

and subjective component of deliberate indifference on this claim. (See id.) In support of his

claim, Plaintiff submitted copies of grievances complaining about the lack of access to news

and information, which include responses from Defendant Payne and Unknown Officer.*

(See Dkt. No. 23 at 79-80.)

The Court notes, however, that at least one of the grievances does not support

Plaintiff's allegation that he was denied access to newspapers—rather, Defendant Payne

responded with “Mr. Welsh, you have access to the news. You can pay for a subscription

to the newspapers of your choice. We do not readily supply the newspaper, but if you pay

4 The signature on the form is illegible but includes a number that Plaintiff interprets as “8281.” (See

Dkt. No. 23 at 80.) The Court notes that that grievance pertains only to the lack of television in

administrative segregation.

for the subscription, you can receive the paper.” (Dkt. No. 23 at 79.) Plaintiff has not

alleged that he attempted to purchase a subscription to a newspaper—just that he was

denied access to a newspaper.

Inmates have a First Amendment right to receive published materials, subject to

reasonable limitations. Pell v. Procunier, 417 U.S. 817 (1974). The Fifth Circuit has stated

that absent inconsistency with a “legitimate jail function,” prisoners should not be deprived

of access to newspapers and magazines. Reimer v. Hastings, 30 F.3d 1492 (Sth Cir. July 19,

1994), citing Mann v. Smith, 796 F.3d 82, 83 (Sth Cir. 1986). The Supreme Court has stated

that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S.

78, 89 (1987).

In determining whether a regulation is reasonable, the Court looks to four factors:

(1) whether there is a valid, rational connection between the prison regulation and the

legitimate governmental interest; (2) whether the regulation or practice allows inmates an

alternative means of exercising the subject constitutional rights, (3) the impact of

accommodation of the asserted right on guards, other inmates, and the allocation of

resources generally; and (4) the absence of ready alternatives to the regulation. Jd. at 89-

90. Courts have struck down such regulations when they are not related to legitimate

penological interests. See e.g. Mann v. Smith, 796 F.2d 79, 83 (5th Cir.1986) (holding that

prison regulation limiting access to periodicals infringed on plaintiff's constitutional rights

when defendants did not show how the regulation was related to legitimate jail function).

But the Fifth Circuit noted that the Supreme Court, in Beard v. Banks, 548 U.S. 521 (2006),

“acknowledged the particular importance of the first factor, explaining that in some cases

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the second, third, and fourth factors can ‘add little, one way or another, to the first factor’s

basic logical rationale.’” Morgan v. Quarterman, 570 F.3d 663, 666 (Sth Cir. 2009) (quoting

Beard, 548 U.S. at 528).

Plaintiff's allegation that he was totally denied access to news via newspaper without

any alternative means is threadbare, at best, and deceptive at worst. In his pleadings,

Plaintiff never alleges that he sought to purchase a subscription and the request was denied.

Rather, he merely alleges that because he was in administrative segregation, he was not

given access to newspapers. But his allegation is undermined by the very grievance he

submits to support his claim. (See Dkt. No. 23 at 79.) Defendant Payne’s response to his

grievance does not indicate that he is prohibited access to a newspaper, either as a result of

his being in administrative segregation, or because of some other policy. Just that the

LCDC does not provide newspapers without prepayment.

Plaintiff's newspaper claims do not rise to the level of a constitutional violation.

Arguably, the requirement of prepayment for newspaper subscriptions is rationally related

to the governmental interest in controlling costs. In that case, the first Turner factor would

be met, and the Court could find that Plaintiff has failed to state a claim. And in any event,

to the extent Plaintiff complains that he was denied access to a newspaper free of charge

during his month-long stay at LCDC, his claim fails because there is simply no

constitutional requirement that prisons or jails provide free newspapers to inmates. See Hall

v. Phillips, 2005 WL 3789233, at *18-21 (W.D. Ark. Dec. 14, 2005) (holding that there was

no constitutional violation when the facility did not prohibit pretrial detainee from receiving

or obtaining newspapers, but merely did not provide newspapers); see also Harrison v. Myers,

2011 WL 5024238, at *3 (D.S.C. June 24, 2011), report and recommendation adopted, 2011

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WL 5024229 (D.S.C. Oct. 20, 2011); see also Anderson v. Bowers, 2020 WL 624229 (E.D. Ark.

Feb. 10, 2020), adopting 2020 WL 625236, at *2 (no constitutional violation from one-month

denial of access to a newspaper). Thus, Plaintiffs claim that he was denied access to news

because he was not provided with newspapers must be dismissed for failure to state a claim.

C. Failure to Train and Supervise and Policy Claims

Welsh’s final claim alleges that Defendant Lubbock County—through its official

policy makers, Defendant Sheriff Rowe and Defendant Chief Administrator Scott—violated

his Constitutional rights by policy, practice, or custom. Specifically, Plaintiff asserts that

each of the alleged constitutional violations happened because these Defendants (1) failed to

train and supervise the other Defendants, and (2) were deliberately indifferent to his

constitutional rights when they implemented the alleged policies, practices, or customs that

allowed the violations to occur.

The Magistrate Judge recommended that his claims be dismissed because (1) a

municipality cannot be held liable under Section 1983 on a respondeat superior theory; and

(2) Plaintiff has failed to show that either Rowe or Scott was personally involved in any

alleged violation. (See Dkt. No. 20 at 23.) And, to the extent Plaintiff raises policy claims,

the Magistrate Judge found no underlying constitutional violations—other than his claim

against K. Young for placing him in administrative segregation without due process—thus,

Plaintiff had not stated a viable policy claim. (Dkt. No. 20 at 24); see also Hicks-Fields v.

Harris Cty., Tex., 860 F.3d 803, 808 (Sth Cir. 2017) (explaining that there cannot be

municipal liability without an underlying constitutional violation.) Moreover, the

Magistrate Judge concludes that even as to the surviving claim against Defendant Young,

any policy claim still fails because his policy allegations are conclusory, which provide an

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insufficient basis for Section 1983 claims. (/d. at 24.) Similarly, the FCR concludes that

Plaintiff has not demonstrated that the Defendants acted with deliberate indifference. (Jd.)

Plaintiff objects, arguing that the totality of the conditions alleged in his complaint

are sufficient to state a claim against Lubbock County. (See Dkt. No. 23 at 54.) Moreover,

Plaintiff argues that the Magistrate Judge grossly misstates the facts as to his failure to train

claim. (See id. at 23). In particular, he relies on Hare v. City of Corinth, 74 F.3d 633, 644-645

(Sth Cir. 1996), for the proposition that his due process claim against Defendant K. Young

“begins with the assumption that it is either a policy of Lubbock County or they failed to

train Defendant Young.” Jd. But Hare is no help to Plaintiff, because in that case, the Fifth

Circuit went on to hold that deliberate indifference was the “requisite mental state” and that

deliberate indifference for acts or omissions claims required a showing that the prison

official had “actual knowledge of the substantial risk of [harm].” Jd. at 648-50. Plaintiff has

not alleged that Defendants Lubbock County, Rowe, or Scott had actual knowledge that

Defendant Young violated his due process rights when he placed Plaintiff in administrative

segregation, or that he would suffer some harm as a result. Indeed, the Court notes that

Plaintiff alleges that Defendant Young’s decision to place him there was based on personal

animus, even telling Plaintiff he didn’t have to place him there, but he did it because he

wanted to. (See Dkt. No. 19 at 2.) Plaintiff admits that he did not allege personal

involvement on the part of Defendants Lubbock County, Rowe, or Scott, but argues that the

responses to his grievances are sufficient to demonstrate that they failed to train the involved

officers. (See Dkt. No. 23 at 59.) But again, as the Court has found no constitutional

violation on most of Plaintiff's claims, his objection is overruled.

15,

4, Plaintiff's Request to Amend

At the end of his objections, Plaintiff seeks leave to amend his complaint. He makes

a few specific requests, then generally requests leave to plead his best case with respect to

any claim the Court dismisses. (See Dkt. No. 23 at 60.) The Court has already considered

most of Plaintiff's specific requests—namely, allowing Plaintiff to clarify his allegations

against Defendant Jenkins regarding review of his placement in administrative segregation,

and noting the omission of his claim regarding denial of access to newspapers.

Additionally, the Court accepts his submission of copies of the relevant grievances to further

support his claims.

Given the posture of this case, Plaintiff may only amend or supplement his pleading

if the Court grants him leave to do so. See Fed. R. Civ. P. 15(a). Rule 15(a)(2) requires a

trial court to “freely give leave when justice so requires.” Plaintiff is not automatically

entitled to amend his complaint, however, and decisions concerning motions to amend are

left to the sound discretion of the Court. See Quintanilla v. Tex. Television, Inc., 139 F.3d 494,

499 (5th Cir. 1998). To aid the exercise of that discretion, Courts in the Fifth Circuit

consider five factors: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to

cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; and

(5) futility of the amendment. Smith v. EMC Corp., 393 F.3d 590, 595 (Sth Cir. 2004).

Here, Plaintiff has had at least two chances to hone his factual allegations. He filed

responses to the Magistrate Judge’s questionnaire (Dkt. No. 19), and detailed objections to

the Magistrate Judge’s findings, conclusions, and recommendations. He now asserts, in

conclusory fashion, that if his objections and submission of grievances do not cure the flaws

in his prior pleadings, he should be given further leave to amend. The Court finds that

16

Plaintiff has been given ample opportunity to plead his best case. Permitting further

amendment now would unnecessarily delay the case. Plaintiff has been given notice and

opportunity of the deficiencies in his complaint and has not shown why he has not

addressed the deficiencies before now, after repeated opportunities to do so. Except as

previously noted, Plaintiff's general request to amend is denied.

5. Conclusion

Except as noted above, Plaintiff's objections are overruled, and the Court accepts and

adopts the findings, conclusions, and recommendation of the Magistrate Judge.

As a result, the Court orders:

(1) The Court will enter a separate order directing service by the United States

Marshal and requiring Defendant K. Young, in his individual capacity, to answer or

otherwise plead to Plaintiff's claim for a procedural due process violation arising from

Plaintiffs placement in administrative segregation without a hearing.

(2) All remaining claims and defendants are dismissed with prejudice under

28 U.S.C. § 1915(e)(2)(B) (ii) for failure to state a claim.

(3) There is no just reason for delay in entering a final judgment and final

judgment should be entered as to the above-named Defendants and claims pursuant to

Federal Rule of Civil Procedure 54(b).

(4) All relief not expressly granted is denied and any pending motions are denied.

Judgment shall be entered accordingly.

Dated_Somemr 2022. 4)

JAMES WESLEY HENDRIX

ye States District Judge

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