Streater v. Lorie Davis, Director TDCJ-CID

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

THEODORE STREATER

Institutional ID No. 01430922

Plaintiff,

No. 5:19-CV-00263-H

LORIE DAVIS, et ai.,

Defendant.

ORDER ACCEPTING IN PART THE FINDINGS, CONCLUSIONS, AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The United States Magistrate Judge made findings, conclusions, and a

recommendation (FCR) in this case. (Dkt. No 29.) Plaintiff filed objections. (Dkt. Nos. 33,

34, 35, 36.) The Magistrate Judge recommended that the Court dismiss all but one of

Plaintiff's claims as frivolous or for failure to state a claim. Specifically, the Magistrate

Judge recommended that only Plaintiff's claim for injunctive relief under the Religious Land

Use and Institutionalized Persons Act (RLUIPA) against Defendant A. Gonzalez—in his

official capacity as warden of the Smith Unit—should proceed.

“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 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 amended complaint

(as supplemented by his testimony at the Spears hearing'), arguments thoroughly addressed

by the FCR, mere disagreements with the Magistrate Judge’s wording, or conclusory

statements insisting that his claims have merit. The Court finds it unnecessary to address

some of these objections. Thus, except as noted below, Plaintiff's objections are overruled,

and the Court expressly adopts the Magistrate Judge’s reasoning.

1. Plaintiff's Claims

This lawsuit arises out of events following Plaintiff's transfer from the Telford Unit of

the Texas Department of Criminal Justice (TDCJ) to the Smith Unit of the TDCJ. Plaintiff

sued 14 Defendants—including employees of the TDCJ and the TDCI itself—alleging a

variety of constitutional violations under 42 U.S.C. § 1983, as well as the Americans with

Disabilities Act (ADA), the Rehabilitation Act (RA), the Religious Land Use and

Institutionalized Persons Act (RLUIPA), and the Safe Prisons Program and Prison Rape

Elimination Act (PREA). He seeks monetary damages, injunctive relief, and certification of

his case as a class action.

Plaintiff's allegations begin with his transfer from the Telford Unit to the Smith Unit

on November 7, 2019.2 He complains of incidents that occurred primarily at the Smith Unit

' Spears v. McCotter, 766 F.2d 179, 181-82 (Sth Cir. 1985).

2 This case was originally filed in the United States District Court for the Eastern District of Texas,

Tyler Division, and the case was transferred to this Court after the Eastern District determined that a

Node portion of the incidents giving rise to Plaintiff's case occurred at the Smith Unit. (Dkt.

from the date of his arrival until the filing of his amended complaint on December 8, 2019.

(Dkt. No. 9.) However, some of his claims are against Telford Unit employees for actions

taken after his transfer to the Smith Unit.

Plaintiff is an experienced litigant who has filed several federal civil actions

challenging various aspects of his confinement in different institutions over the past several

years. The Court finds it pertinent to note that Plaintiff recently prevailed on appeal in a

case against TDCJ officials who work at the Eastham Unit in Houston County, Texas. See

Streater v, Allen, USCA No. 18-40870 (5th Cir. March 19, 2020); No. 9:15-CV-00068 (E.D.

Tex., Lufkin Div.). Following remand and a jury trial on some of his claims in that case,

the jury found that one of the defendants—Sharon Allen—“retaliated against Plaintiff for

the exercise of his First Amendment right to complain to prison officials.” See No. 9:15-CV-

00068, Dkt. No. 213 at 1 (E.D. Tex., Lufkin Div., July 22, 2021). The Eastern District case

is relevant because some of the allegations in this case stem from what Plaintiff describes as

a conspiracy to transfer him from the Telford Unit (located in the Eastern District) to the

Smith Unit (located in this district), in retaliation for his filing the lawsuit against the

Eastham Unit (located in the Eastern District) employees.”

Plaintiff sues 14 defendants in their individual and official capacities: (1) Lorie Davis,

(former) Director of TDCJ-CID; (2) A. Gonzalez, Smith Unit Warden; (3) Captain Miller,

Smith Unit food service captain; (4) Officer Flores, Smith Unit food service officer; (5) Mrs.

Harris, Smith Unit Classification Supervisor; (6) Anthony Cubb, Telford Unit medical staff

member; (7) Chaplain Earnest, Smith Unit chaplain; (8) Mrs. Reimer, Smith Unit grievance

3 The FCR notes that the only apparent connection between the defendants from the Eastham Unit,

Telford Unit, and Smith Unit, is their shared employer—the TDCJ. (See Dkt. No. 29 at 39.)

supervisor; (9) Ms. Rebber, Smith Unit legal mail supervisor; (10) Sergeant K. Vasquez,

Smith Unit Safe Prison/PREA supervisor; (11) Lieutenant Aynes, Smith Unit lieutenant;

(12) Unknown Telford Unit Employees; (13) One Unknown Classification Officer; and

(14) TDCJ.

Plaintiff's claims consist of a patchwork of allegations related to his unit transfer and

various conditions of his confinement since his arrival at the Smith Unit. The Magistrate

Judge organized Plaintiffs claims as summarized below:

a. Defendant Rebber exposed him to potential retaliation and violated his First

Amendment rights by opening—outside of his presence—a sealed letter that

was addressed to a reporter and contained details of his complaints about the

conditions of his confinement.

b. Defendants Davis, Reimer, Aynes, and the TDCJ violated his right to redress

of grievances by making the grievance process unavailable to him.

Cc. Defendant Vasquez violated his rights under the Safe Prisons Program and

PREA.

d. Defendants subjected him to the following unconstitutional conditions of

confinement:

1. Forced medical treatment without the opportunity to opt out in the

form of a transfer to and placement in the Smith Unit Expansion Cell

Block (ECB) for inmates with heat restrictions.

2. Assignment to a wing with offenders of mixed classification levels and

mental health statuses—and a cellmate who was significantly younger

and suffering from serious mental health issues—causing Plaintiff to

fear for his own safety.

3. Confinement in an unsanitary and unsafe cell in deliberate indifference

to his serious medical, health, and safety needs.

4. Unsanitary and poor-quality food service and preparation.

5. Frequent illumination of his cell throughout the night, causing sleep

deprivation and headaches.

e. Defendants Davis, TDCJ, Cubb, Harris, Unknown Telford Unit Employees,

One Unknown Classification Officer, and TDCJ discriminated against him in

violation of the Equal Protection Clause, as well as the ADA and RA by

denying him access to a variety of programs and benefits.

f. Defendants Miller, Flores, Gonzalez, and Earnest violated his First

Amendment right to free exercise of religion by failing to provide him with a

pork-free diet when he first arrived at the Smith Unit.

g. Defendants Gonzalez, Miller, Flores, and TDCJ were deliberately indifferent

to his health and safety by failing to establish policies to ensure that his meal

trays did not contain food items to which he is allergic in violation of his

medically imposed dietary restrictions (i.e. peanut allergy and bean

sensitivity).

h. Defendants Gonzalez, Davis and TDCI failed to establish an adequate policy

and procedure to ensure disposal of “Inmate Locator Reports.”

1. Defendants subjected him to intentional infliction of emotional distress.

j. Defendants Cubb, Harris, Unknown Telford Unit Employees, and One

Unknown Classification Officer conspired to retaliate against him for

pursuing litigation against other TDCJ employees and were deliberately

indifferent to his health and safety needs.

k. Defendants Cubb, Harris, Unknown Telford Unit Employees, and One

Unknown Classification Officer were deliberately indifferent to his serious

medical needs regarding his medical restrictions and work assignment.

1. Defendants Gonzalez, Miller and Earnest violated his rights under RLUIPA

by failing to establish a policy that would prevent Muslim inmates from

having to choose between attending Jumu’ah (Friday prayers) or eating

lunch.

2. The Magistrate Judge’s Findings, Conclusions, and Recommendations

The Magistrate Judge reviewed Plaintiff's claims as described in his amended

complaint (which sought to incorporate his original complaint by reference) and permitted

him to supplement his complaint through his testimony at the Spears hearing. (See Dkt. Nos.

9, 24.) The Magistrate Judge also received and reviewed authenticated records from the

TDCI for the relevant time period, including grievances, classification, chaplaincy, and

medical records. See Wilson v. Barrientos, 926 F.2d 480, 483-84 (Sth Cir. 1991); Banuelos v.

McFarland, 41 F.3d 232, 234 (Sth Cir. 1995).

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

claims should proceed to the next step in the litigation process. After thoroughly analyzing

each of Plaintiff's claims, the Magistrate Judge recommended that Defendant A.

Gonzalez—in his official capacity as warden of the Smith Unit—should be ordered to

answer or otherwise plead to Plaintiffs RLUIPA claim alleging that he has been forced to

choose between attending Jumu’ah (Friday prayers) or eating lunch since his arrival at the

Smith Unit in November 2019. The Court, finding no objection and no plain error, accepts

and adopts this recommendation. The Magistrate Judge then recommended that the Court

dismiss Plaintiffs other claims with prejudice. As explained below, the Court finds that

Plaintiff's objection to the dismissal of his ADA and RA claims should be sustained, in part,

but the rest of his objections should be overruled.

3. Plaintiff's Objections

Plaintiff filed general and specific objections and then two sets of supplemental

objections. (Dkt. Nos. 33, 34, 35.) First, Plaintiff generally objected to the FCR, arguing

that the Magistrate Judge made improper credibility determinations during the screening

process. Then, Plaintiff specifically objected to the Magistrate Judge’s findings on his

claims regarding (1) the grievance process; (2) his housing assignment; (3) his classification;

(4) the defendants’ failure to protect him from his cellmate’s erratic behavior; (5) his cell

conditions; (6) food qualify, preparation, and distribution; (7) sleep deprivation; (8) equal

protection; (9) the ADA and RA; (10) denial of pork-free meals in violation of the First

Amendment’s Free Exercise Clause; (11) meals containing items to which he is allergic;

(12) intentional infliction of emotional distress (ITED); and (13) deliberate indifference

related to his medical restrictions and work assignment. As explained below, the Court

overrules Plaintiff's objections, except, in part, his objection to the dismissal of his ADA and

RA claims, which is sustained.

A. General Objection to FCR Credibility Determinations

Plaintiff objects to the overall stance of the FCR, contending that it “is based on

inappropriate credibility determinations and exceeds the scope of the screening process.”

(Dkt. No. 33 at 1.) Plaintiff asserts that while the Court may hold an evidentiary hearing in

support of screening under the PLRA, “it is improper to resolve factual disputes and to

make credibility determinations and judgments at the screening” stage. Id.

It is true that “[i]n a Spears hearing, the district court may make only limited

credibility determinations ... .” Norton v. Dimanza, 122 F.3d 286, 292 (Sth Cir. 1997) (citing

Cay v. Estelle, 789 F.2d 318, 326-27 (Sth Cir. 1986), overruled on other grounds, Denton v.

Hernandez, 504 U.S. 25 (1992)). “[{T]he most important consideration in a [Section]

1915(d) credibility assessment is the inherent plausibility of a prisoner’s allegations based on

objective factors.” Cay, 789 F.2d at 326 (5th Cir. 1986). See Gilbert v. Collins, 905 F.2d 61,

63 (5th Cir. 1990). A defendant may not use medical records to refute a plaintiff's testimony

at a Spears hearing, Williams v. Luna, 909 F.2d 121, 124 (Sth Cir.1990), but the Court may

require the defendants in prisoner-rights cases to construct an administrative record to assist

the Court in determining whether the complaint is frivolous. Cay, 789 F.2d at 323

n. 4; Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (establishing procedure approved

in Cay).

In this case, the Magistrate Judge, in compliance with Cay, asked the Texas Attorney

General to provide authenticated copies of Plaintiff's records. The Court used those records

to make findings, conclusions, and recommendations as to whether any or all of Plaintiffs

claims were frivolous or failed to state a claim. And, at this stage in the screening process,

the Court must accept Plaintiff's allegations as true and cannot rely on the written records to

rebut Plaintiff's factual allegations. See Williams v. Luna, 909 F.2d 121, 124 (Sth Cir. 1990)

(holding that prison records could not be used to refute plaintiff's Spears-hearing testimony).

However, “pro se plaintiffs must still plead factual allegations that raise the right to relief

above the speculative level.” Chimm v. Univ. of Texas at Austin, 836 F.3d 467, 469 (Sth Cir.

2016).

“A complaint, as amended by a Spears hearing, may be dismissed pursuant to a Rule

12(b)(6) motion by the defendant or by 28 U.S.C. § 1915(d) if it lacks an arguable basis in

law.” Jackson v. Vannoy, 49 F.3d 175, 176-77 (Sth Cir. 1995) (footnotes omitted). “A

complaint lacks an arguable basis in law if it is based on an indisputably meritless legal

theory, such as if the complaint alleges a violation of a legal interest which clearly does not

exist.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997) (internal quotations

omitted). Moreover, Section 1915(d) “accords judges not only the authority to dismiss a

claim based on an indisputably meritless legal theory, but also the unusual power to pierce

the veil of the complaint’s factual allegations and dismiss those claims whose factual

contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). For

example: complaints like Plaintiff's claims urged under the PREA—alleging the violation of

a nonexistent legal right—are legally baseless.

Plaintiff understandably takes issue with the Magistrate Judge’s conclusion that his

allegations, for the most part, failed to state a legal basis for relief. But the Court notes that

the Magistrate Judge accepted Plaintiff's allegations as true. (See Dkt. No. 29 at 2, 16, 47.)

Plaintiff seems to suggest that any conclusion that his allegations failed to state a claim must

be the result of a credibility determination. However, the Court finds that applying relevant

legal standards to factual allegations—taken as true—is the opposite of a credibility

determination. Instead, it is a critical part of the screening process for the Magistrate Judge

to dig beneath the often-conclusory allegations of a pro se complaint to ascertain exactly

what the prisoner alleges occurred and the legal basis of the claims. That some of those

allegations will fail to state a legal basis for relief does not amount to an improper credibility

determination. Thus, Plaintiff's general objection is overruled.

B. Grievance Process and Retaliation

Plaintiff complains that the Smith Unit offender grievance process violated his

constitutional rights in a variety of ways. First, Plaintiff alleges that Defendant Reimer

failed to process offender grievances according to TDCJ policies. (Dkt. No. 9 at 8.)

Second, Plaintiff alleges that Defendants Davis, Reimer, and TDCI failed to establish a

procedure where prisoners are issued a log number so they can verify the submission of

grievances. (Id. at 9.) Third, Plaintiff asserts that the failure to establish a grievance

submission verification procedure allowed Defendant Reimer to conceal, destroy, and deny

the filing of grievances. (Jd.) In support of those claims, Plaintiff alleges that he has filed

grievances since his arrival at the Smith Unit, but they disappear and are never

acknowledged or addressed. Finally, Plaintiff alleges that Defendant Aynes’s threatening

actions made the grievance procedure unavailable to him. (/d.)

Plaintiff's claims against Defendant Aynes are the result of an incident that occurred

on the day he arrived at the Smith Unit when he and other inmates witnessed unidentified

officers assaulting an inmate. When another inmate named Sims questioned the use of

force and said he was going to file a grievance, Plaintiff alleges that Defendant Aynes struck

Sims in the head with a walkie-talkie, opening a gash over his eyebrow. (See Dkt. No. 1 at

7.) Later, Plaintiff claims that Defendant Aynes stated to the group “[a]nybody else want to

file a grievance? Ya'll [sic] gonna learn how grievances get answered on the Smith Unit. I

run this [expletive]! Welcome to the real world.” (Dkt. No. 1 at 7.) Plaintiff deduced from

this single incident that Defendant Aynes would retaliate against him with physical violence

if he ever filed a grievance at the Smith Unit.

The Magistrate Judge concluded that Plaintiff failed to state a viable constitutional

claim based on his allegations that the grievance process was unavailable to him. (Dkt. No.

29 at 15-17.) Specifically, the Magistrate Judge found that Plaintiff did not have a

constitutional right to have grievances resolved to his satisfaction. (Jd. at 15.) More

fundamentally, the Magistrate Judge found that Plaintiff did not possess a liberty interest in

having access to a prison grievance procedure in the first place. (Jd. at 16.) Additionally,

the Magistrate Judge concluded that Defendant Aynes’ purported threats did not violate

Plaintiff's constitutional rights because verbal threats or harassment by a correctional officer

do not provide the basis for a viable Section 1983 claim. Robertson v. Plano City, 70 F.3d 21,

24 (5th Cir. 1995) (citing McFadden v. Lucas, 713 F.2d 143, 146 (Sth Cir. 1983)).

Plaintiff objects to the characterization of his claims as only being about the

resolution of his grievances. And he asserts that the FCR relied incorrectly on case law

involving grievances that had received responses—which he argues are distinguishable from

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his complaint about a process that refuses to acknowledge the filing of the grievances,

threatens prisoners for using the grievance process, or both. (Dkt. No. 33 at 2.) So, he

claims that the process itself was unavailable, which he asserts is a violation of his First

Amendment rights. Additionally, Plaintiff argues that Defendant Aynes’s threats went

beyond verbal threats because he assaulted a different offender “as an example of what he

would do to any offender who chose to exercise their right to redress of grievance.” (Jd. at

3.) Plaintiff also points to affidavits of other inmates to support his claims that “assaults

were how grievances are dealt with,” and unsworn declarations from Smith Unit offenders

that “corroborate the fecklessness and unavailability and dangerousness of using the

grievance process.” (See Dkt. No. 33 at 2.) But to be clear, Plaintiff does not allege that he

was personally assaulted in response to any grievance he filed.

i. Plaintiff has no right to a grievance procedure.

The Court understands Plaintiff's objection that his claim is not simply about

resolution of grievances, but rather that the grievance procedure was entirely unavailable to

him. Even so, the Magistrate Judge’s finding that he failed to state a claim is correct.

Congress requires inmates to exhaust their “administrative remedies as are available . . .

42 U.S.C. § 1997e(a). A prison system is not, however, required to establish grievance

procedures, and inmates do not have a basis for a lawsuit because a prison system has not

established a grievance procedure or fails to adhere to it. 42 U.S.C. § 1997e(b). Thus,

Plaintiff's allegations that the defendants failed to establish procedures or to process

grievances according to such a procedure simply do not support a constitutional violation.

The Magistrate Judge’s conclusion is consistent with well-established case law in this

circuit. As succinctly explained by another district court, “Congress established the

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exhaustion requirement to give prisons and jails the first opportunity to address complaints

by inmates, but inmates do not have a basis for a lawsuit because they are dissatisfied with

the grievance procedure.” Stafford v. McKay, No. 5:10-CV-35, 2010 WL 4274758, at *9

(E.D. Tex. Sept. 27, 2010), rep. and rec. adopted, 2010 WL 4286162 (Oct. 28, 2010).

Indeed, the Fifth Circuit has explained that “[an inmate] does not have a federally protected

liberty interest in having these grievances resolved to his satisfaction. As he relies on a

legally nonexistent interest, any alleged due-process violation arising from the alleged failure

to investigate his grievances is indisputably meritless.” Geiger v. Jowers, 404 F.3d 371, 373-

74 (5th Cir, 2005); see also Jenkins v. Henslee, No. 3-01-CV-1996-R, 2002 WL 432948, at *2

(N.D. Tex. Mar. 15, 2002) (explaining that “[a]n inmate does not have a constitutional

entitlement to a grievance procedure,” and that “violation of the grievance procedure does

not amount to a constitutional violation”) (citing Adams v. Rice, 40 F.3d 72, 75 (4th Cir.

1994) and Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996)). Thus, Plaintiffs claims that

the defendants failed to process—or even provide a procedure for processing—grievances at

the Smith Unit are meritless. Likewise, his claims that the lack of a procedure made it

possible for Defendant Reimer to conceal, destroy, and deny the filing of grievances must

fail. Plaintiffs objections are overruled.

ii. Defendant Aynes’s actions against another inmate did not violate

Plaintiffs constitutional rights.

Plaintiff's claims that Defendant Aynes’s actions made the grievance process

unavailable to him require some additional discussion. Plaintiff couches his claims against

Aynes in terms of retaliation. In other words, Plaintiff claims that Aynes’ assault on

another inmate who voiced his intention to file a grievance against officers, coupled with his

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implied threat that other offenders who filed grievances might be assaulted as well, amounts

to retaliation. And, according to Plaintiff, this preemptive retaliation later prevented him

from exercising his First Amendment right to file grievances at the Smith Unit.

Plaintiff places special emphasis on Ross v. Blake, 136 S. Ct. 1850, 1860 (2016), which

he cites for the proposition that “when prison officials use threats and intimidation to

prevent a prisoner from using the grievance system, or ‘thwart inmates from taking

advantage of a grievance process through machinations, misrepresentations, or

intimidation’ those actions violate a prisoner’s First Amendment rights.” (Dkt. No. 33 at 2.)

But Plaintiff misinterprets Blake, which says nothing about when a prisoner’s First

Amendment rights are violated, and it does not support a cause of action against prison

officials.

Instead, Blake concludes, based on the textual exception in 42 U.S.C. § 1997e(a)

itself, that a prisoner is not required to exhaust remedies prior to filing suit if remedies are

unavailable. Jd. at 1855-59. An administrative remedy may be unavailable if (1) despite

what regulations or materials may promise, prison officials are “unable or consistently

unwilling to provide any relief to aggrieved inmates,” (2) “an administrative scheme [is] so

opaque that it becomes, practically speaking, incapable of use” by an ordinary prisoner, or

(3) prison administrators “thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.” Jd. at 1859-60. In short, Blake

says that Officer Aynes’s alleged actions may excuse Plaintiff from the PLRA’s requirement

that he exhaust his administrative remedies prior to filing a lawsuit, but it does not create a

basis for Plaintiff to file a lawsuit. So, Blake is of no help to Plaintiff, and his objections to

the FCR based on Blake must be overruled.

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Plaintiff's claim that Aynes’ actions amount to retaliation are similarly without

merit. The Magistrate Judge discussed the standard for establishing a claim for retaliation

with respect to Plaintiff's claims stemming from his transfer to the Smith Unit. (See Dkt.

No. 29 at 38). The same standard must be applied to Plaintiffs claim here: “[t]o state a

claim of retaliation an inmate must allege the violation of a specific constitutional right and

be prepared to establish that but for the retaliatory motive the complained of incident...

would not have occurred.” Woods v. Smith, 60 F.3d 1161, 1166 (Sth Cir. 1995). This is a

“significant burden” that requires the production of “direct evidence of motivation or, the

more probable scenario, . . . ‘a chronology of events from which retaliation may plausibly be

inferred.’” Id. (quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir.1988)). “Mere

conclusory allegations of retaliation” are insufficient. Id.

Plaintiff alleges, essentially, that Aynes threatened him with physical violence as a

consequence for filing future grievances. In support of this claim, Plaintiff mentions the

Fifth Circuit’s remand of his Eastern District case for the proposition that retaliation can be

present when an officer assaults someone besides the claimant. (See Dkt. No. 33 at 3 (citing

Streater v. Allen, 805 F. App’x 293 (5th Cir. March 19, 2020))). But as explained by the

Magistrate Judge, verbal threats, abusive language, or other harassment are simply not

sufficient to state a constitutional claim. (See Dkt. No. 29 at 16-17.) To the extent Plaintiff

alleges that Defendant Aynes’ actions on the day of his arrival at the Smith Unit prevented

him from exercising his First Amendment right to file any grievances, the Court finds no

support for the retaliation allegation. The preemptive nature of the threat to Plaintiff's

ability to file grievances in the future necessarily defeats any plausible chronology of events.

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At most, Plaintiff has alleged that he witnessed Defendant Aynes retaliate against Sims; but

Plaintiff has no standing to sue for harm done to another inmate.

Likewise, Plaintiff's attempt to draw a parallel to his claim in Streater v. Allen fails

because it is based on a misstatement of the Fifth Circuit’s decision in that case. There,

Plaintiff alleged, among other things, that prison officials retaliated against him for filing

grievances by assigning him to a work crew overseen by an officer who assaulted inmates

without cause. See Streater, 805 F. App’x at 295. The district court granted summary

judgment in favor of the defendants based upon an affidavit that contradicted Plaintiff's

allegations regarding the reasons for his housing and work assignment. Jd. at 296. The

Fifth Circuit vacated and remanded the retaliation claim, essentially finding that the district

court made an improper credibility determination on summary judgment. Jd. (citing Butts v.

Martin, 877 F.3d 571, 589 (5th Cir. 2017)). Although the Fifth Circuit acknowledged that a

“transfer to a more dangerous section of the same prison is a sufficiently retaliatory act to

support a § 1983 claim,” it did not conclude as a matter of law that retaliation can be present

even when an officer assaults someone besides the claimant. See id. (quoting Morris v.

Powell, 449 F.3d 682, 687 (5th Cir. 2006)). And more recently, the Fifth Circuit has found

that vague implied “promises of violence” to prevent inmates from using the grievance

procedure “are, without more, insufficient to state a claim of either retaliation or an Eighth

Amendment violation.” Walter v. Perkins, No. 20-30547, 2021 WL 5458110, at *1 (Sth Cir.

Nov. 22, 2021) (citing Morris v. Powell, 449 F.3d 682, 684 (Sth Cir. 2006); Geiger v. Jowers,

404 F.3d 371, 373 (5th Cir. 2005); and Calhoun v. Hargrove, 312 F.3d 730, 734 (Sth Cir.

2002)). Thus, while Defendant Aynes’ alleged behavior may have been unprofessional and

inexcusable, Plaintiff has not met the significant burden required to state a claim of

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retaliation. Additionally, this claim is undermined by Plaintiff's testimony that he did

submit at least one grievance at the Smith Unit prior to filing this lawsuit, and his

acknowledgment that he was not assaulted by Aynes as a result. (See Dkt. No. 29 at 9.)

Plaintiffs objection on this claim is overruled.

Cc. Conditions of Confinement

Next, the Magistrate Judge organized Plaintiff's conditions-of-confinement claims in

the following categories: (1) ECB housing assignment, housing classification, and cellmate

conduct; (2) cell conditions and food quality; and (3) sleep deprivation. The Magistrate

Judge concluded that Plaintiff failed to state a cognizable claim in each category and

recommended that they be dismissed with prejudice.

i. ECB Housing Assignment, Housing Classification, and Cellmate

Conduct

Plaintiff complains that his placement in ECB housing and classification as a heat-

restricted inmate constitutes forced medical treatment, which he should be entitled to refuse.

Plaintiff also complained that Defendants violated his rights when he was placed in housing

with a younger, mentally unstable cellmate who sexually harassed and assaulted him by

attempting to hug him on two or three occasions, and who threatened—but did not

assault—him in the dayroom. Additionally, Plaintiff complains that he was unable to sleep

in the cell due to his fear of his cellmate’s erratic behavior.

a. Plaintiff's ECB assignment does not constitute forced

medical treatment.

Plaintiff's objection to the FCR’s analysis of this claim is a restatement of arguments

made in his amended complaint. He cites Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261,

278 (1990), for the proposition that a competent person has a liberty interest in refusing

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unwanted medical treatment. But Plaintiff provides no support for his conclusory assertion

that merely being housed in the ECB amounts to medical treatment—forced or otherwise.

The Magistrate Judge cited a great body of precedent clearly demonstrating that prisoners

have no constitutional right or interest in being housed in a particular prison or facility. (See

Dkt. No. 29 at 18-19.) Moreover, to the extent Plaintiffs placement in the ECB is based on

a medical classification, Fifth Circuit precedent makes clear that disagreement with a

medical classification is not enough to state a claim under Section 1983. See Wilson v.

Budney, 976 F.2d 957, 958 (5th Cir. 1992); Jackson v. Cain, 864 F.2d 1235, 1246 (Sth Cir.

1989). Plaintiff's conclusory objection is overruled.

b. Plaintiff's cellmate assignment did not violate his

constitutional rights.

Next, the Magistrate Judge construed Plaintiffs claims regarding mixing mentally ill

inmates with those that are not mentally ill as a failure-to-protect claim and concluded that

Plaintiff had failed to meet the stringent standard for such a claim. (See Dkt. No. 29, 19-

20.) The Magistrate Judge also found that “[a] failure to protect claim that fails to allege

any resulting physical injury does not state an Eighth Amendment violation entitling a

prisoner to compensatory damages.” (See Dkt. No. 29, 20 (citing Glenn v. Barber, No. 2:12-

CV-00237, 2013 WL 2458622, at *6 (S.D. Tex. June 5, 2013))). But Plaintiff argues that the

claim is one of deliberate indifference by the defendants because his cellmate was obviously

unstable as demonstrated by his numerous transfers to mental health institutions and prior

violent behavior while incarcerated. (Dkt. No. 33 at 4.) Plaintiff argues that he is not

required to show a physical injury from sexual assault and that he is entitled to punitive

damages regardless. (See id.) Further, Plaintiff reiterates the fact that he was unable to sleep

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in the cell due to the constant threat of his cellmate’s erratic and unstable mental condition

and aggressive behavior. (/d.)

In support of his objection, Plaintiff cites Gates v. Cook, 376 F.3d 323, 342-43 (Sth

Cir. 2004), which involved claims regarding problems stemming from inadequate mental

health care afforded inmates on death row. In Gates, a death row inmate brought suit on

behalf of himself and other death row prisoners in Mississippi. He alleged certain

conditions of confinement on death row— including exposure to and behavior of psychotic

inmates in adjacent cells—violated the Eighth Amendment's prohibition against cruel and

unusual punishment. Jd at 327. After certifying the case as a class action, the trial court

found that a number of the conditions on death row violated the Eighth Amendment and

ordered the Mississippi Department of Corrections (MDOC) to comply with injunctive

relief designed to alleviate those conditions. Jd. Relevant here, Gates involved evidence that

“the isolation and idleness of Death Row combined with the squalor, poor hygiene,

temperature, and noise of extremely psychotic prisoners create an environment ‘toxic’ to the

prisoners’ mental health.” Jd. at 343. The Fifth Circuit affirmed the district court’s

conclusion that MDOC officials displayed deliberate indifference to those conditions and

that an injunction was needed. Jd. But the Court finds no support in Gates for Plaintiff's

contention that housing mentally ill inmates with mentally healthy inmates is deliberate

indifference in every case, and Plaintiff's factual allegations are notably less egregious than

those in Gates.

Plaintiff specifically objects to the Magistrate Judge’s conclusion that he failed to

state a claim as to his cellmate’s allegedly “sexually assaultive” behavior based upon his

failure to allege a physical injury. Plaintiff contends that he is still entitled to punitive

18

damages for the sexual assault, regardless of the fact that he did not suffer any physical

injury. (Dkt. No. 33 at 4.) But Plaintiff is mistaken. “No Federal civil action may be

brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior showing of physical injury or the

commission of a sexual act (as defined in Section 2246 of Title 18).” 42 U.S.C. § 1997e(e).

However, hugging—much less attempted hugging—does not fall under any of the

definitions of “sexual act,” which require direct contact with genitalia. See 18 U.S.C.

§ 2246(2). Plaintiff has not alleged that his cellmate’s behavior included any direct contact

with genitalia. Plaintiff's objections on this point are overruled.

ii. Cell Conditions and Food Quality

Next, the Magistrate Judge thoroughly analyzed Plaintiffs claims regarding the

conditions of his cell and food quality. (See Dkt. No. 29, 20-24.) The FCR concludes that

Plaintiff failed to state a claim because (a) he has not demonstrated that the conditions of his

cell deprived him “of the minimal civilized measures of life’s necessities”; (b) his allegations

do not demonstrate deliberate indifference on the part of any named Defendant; and

(c) Plaintiff has not alleged harm greater than de minimis as a result of the conditions of his

cell. Ud.) Likewise, with regard to his claims regarding food preparation and distribution,

the Magistrate Judge concluded that Plaintiff had failed to state a claim of constitutional

dimension. (Jd. at 24.)

19

a. Despite his objections, Plaintiff failed to allege facts showing

that the named defendants were subjectively aware of his

conditions of confinement and the purported risk to his

safety.

In evaluating his cell conditions claims, the Magistrate Judge explained that “[o]nly

those officials who know of and disregard ‘an excessive risk to inmate health or safety’ are

liable under the Eighth Amendment for denying inmates humane conditions of

confinement.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). And the prison officials

responsible for the deprivation must have a “sufficiently culpable state of mind.” Jd.

(quotation omitted). “In prison-conditions cases[,] that state of mind is one of deliberate

indifference to inmate health or safety... .” Jd. (internal citations and quotation omitted).

The Magistrate Judge noted that, at best, Plaintiffs allegations amount to negligence

because the defendants perhaps should have known about the conditions in his cell. (Dkt.

No. 29 at 23.) But Plaintiff failed to allege any facts demonstrating that Defendants were

subjectively aware of both the conditions in which Plaintiff was housed and the specific risk

they posed to his safety. (Jd.) Additionally, the FCR found that Plaintiff had failed to

demonstrate that the conditions in his cell deprived him “of the minimal civilized measures

of life’s necessities.” (Jd. at 22.)

In his objections, Plaintiff repeats the allegations from his complaint that the unclean

conditions of his cell violated the Eighth Amendment. He objects to the Magistrate Judge’s

assertion that he has not alleged that any Defendant knew of the conditions of his cell and

the specific risk to his safety. Specifically, he contends that he did name the defendants

responsible for the conditions of his cell in his original complaint—that is, Defendant Davis,

20

as Director of the TDCJ-CID, and Defendant Sgt. Vasquez, identified as the Safe

Prison/PREA officer. (See Dkt. No. 33 at 5.)

To prevail on a conditions-of-confinement claim, a plaintiff must plausibly state an

objective and a subjective element. Arenas v. Calhoun, 922 F.3d 616, 620 (Sth Cir. 2019).

First, the plaintiff must establish objectively that the prison official deprived him of the

minimal requirements for civilized measure of life’s necessities and thus exposed him to a

substantial risk of injury. Jd. “Restrictive or even harsh” conditions do not create a

deprivation; rather, the deprivation must be serious. Coleman v. Dallas Cty. Jail, No. 3:19-cv-

3009-L-BN, 2020 WL 7029915, at *4 (N.D. Tex. October 22, 2020); see Carter v. Brown, No.

1:20-cv-01376, 2021 WL 1556374, *2 (W.D. La. April 1, 2021). Second, the plaintiff must

show that the prison official subjectively knew of the risk the condition created and showed

deliberate indifference to that risk to the plaintiff. Id. at *1-2 (citing Arenas, 922 F.3d at

620).

The Court finds that the conclusion on this claim does not turn on the identity of the

defendants, but rather on the failure to meet the subjective prong of the deliberate-

indifference analysis. And Plaintiff's own allegations fail to allege—much less

demonstrate—that any named defendant, including Davis and Vasquez, were actually aware

of the conditions of his cell and the specific risk they posed to his safety. In short, his

allegation that they should have known about the conditions of his cell is not adequate to

demonstrate deliberate indifference against Defendants Davis and Vasquez. Plaintiff also

objects to the FCR’s conclusion that his claim should be dismissed because he has not

alleged more than de minimis harm, arguing that he may be entitled to nominal and

21

punitive damages. But, since Plaintiff failed to state a claim in the first place, his assertion is

of no consequence.

b. Plaintiff's food-quality allegations fail to rise to the level of a

constitutional violation.

Plaintiff next objects to the FCR regarding food quality—briefly summarizing his

claims and seeking to bolster them by “rais[ing] the fact that a substantial number of

prisoners on Smith unit contracted Covid-19,” and that some have died. (See Dkt. No. 33 at

6.) While perhaps unpleasant, Plaintiffs food-quality claims do not describe an extreme

deprivation of health, hygiene, or sanitation and appear more akin to negligence. The Fifth

Circuit has held that negligent management of food services within a prison does not state a

constitutional claim. See Flowers v. Dent, 21 F.3d 1109, 1994 WL 171707, *3 (Sth Cir. 1994).

In that case, the appeals court found no plausible claim where the plaintiff alleged that the

kitchen facilities were unsanitary, that the “cleaning program was ‘irregular and

ineffective,’” that inmate workers were not properly trained, and that “food storage shelves

were soiled with dirt and rodent droppings... .” Id. at *1-2.

Additionally, the Court is unpersuaded by Plaintiffs attempt to bolster his claim with

the conclusory assertion that the alleged incidence of COVID-19 at the Smith Unit is

appropriately traced to the food-handling program. See Hodges v. Frasier, 176 F.3d 479 (Sth

Cir. 1999) (finding no “clear or obvious error” in the district court’s decision “that the

possibility that HIV-positive inmates were involved in food preparation did not state a

constitutional claim because ‘AIDS is not transmitted by casual contact such as food

preparation’”). According to information posted on the Centers for Disease Control and

Prevention (CDC) website, “[c]urrently there is no evidence to support transmission of

22

COVID-19 associated with food.”* Courts are permitted to take judicial notice of

information appearing on government websites if the information is not subject to

reasonable dispute because it can be accurately determined from sources whose accuracy

cannot reasonably be questioned. Fed. R. Evid. 201(b); See, e.g., Ball v. LeBlanc, 792 F.3d

584, 591 (5th Cir. 2015) (approving the district court’s taking of judicial notice of the website

materials on the National Weather Service’s website relating to the correlation between heat

and death in adjudicating a claim that involved atmospheric heat at the prison); Gent v.

CUNA Mut. Ins. Soc’y, 611 F.3d 79, 84 (1st Cir. 2010) (taking judicial notice of material on

CDC website regarding Lyme disease—cause, symptoms, and treatment). Plaintiff's

objections are overruled.

iii. | Sleep Deprivation

Plaintiff alleges that he was deprived of sleep because the “control picket” repeatedly

turns on the lights in his cell at various times throughout the night, and he is unable to

control them himself, causing Plaintiff to only be able to sleep for roughly one hour at a

time. (See Dkt. No. 1 at 9; Dkt. No. 9 at 10.) Plaintiff alleged that the lack of sleep has led

to migraines and vision problems. (Tr. 3:04:40-:05:05.) The Magistrate Judge found that

his claims should be dismissed because Plaintiff had failed to name anyone responsible for

controlling the lights as a defendant, and even if he had, he has not alleged that they were

subjectively aware of his being deprived of sleep and any risks to his health associated with

such deprivation. (See Dkt. No. 29 at 25.) Moreover, the FCR concluded that his sleep-

deprivation claims must fail based upon the Fifth Circuit’s previous holding that

Food Safety and Coronavirus Disease 2019 (COVID-19),

yeeds: gov/foodsafety /newsletter/food-safety-and-Coronavirus. html (last visited Nov.

23

disturbances throughout the night in a prison facility that operates 24 hours a day do not

constitute an Eighth Amendment violation. (Jd.)

In his objections, Plaintiff argues that the Magistrate Judge is essentially requiring

him to prove his allegations at the screening level and that he is not required to state every

allegation in his complaint or name every party responsible for the violations. (See Dkt. No.

33 at 6.) Plaintiff states that he did name the defendants personally responsible for the

policies (or for failing to ensure the policies were being enforced), which led to the sleep

deprivation—that is, Defendants Sgt. Vasquez and Lorie Davis. (See Dkt. No. 1 at 74, and

Dkt. No. 9 at 50.) Plaintiff also argues that it is not a matter of whether the defendants

“knew” of the risk posed by sleep deprivation, but whether they “should have known” of

the risks. Finally, Plaintiff argues that he should be permitted to correct the alleged

deficiency of his complaint and indicates that his claim should not be dismissed without the

opportunity to conduct discovery to identify the party responsible for controlling the lights.

(See Dkt. No. 33, 6-7.)

The Fifth Circuit has recognized that sleep constitutes a basic human need, and

conditions designed to prevent sleep may violate the Eighth Amendment. See Harper v.

Showers, 174 F.3d 716, 720 (5th Cir. 1999). And “a prison official who was unaware of a

substantial risk of harm to an inmate may nevertheless be held liable under the Eighth

Amendment if the risk was obvious and a reasonable prison official would have noticed

it.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). Moreover, “a factfinder may conclude

that a prison official knew of a substantial risk from the very fact that the risk was

obvious.” Jd. at 842.

24

But in Chavarria v. Stacks, 102 F. App’x 433, 436 (Sth Cir. 2004), the Fifth Circuit

also concluded—albeit in an unpublished opinion—that a “policy of constant illumination

[was] reasonably related to the legitimate penological interest of guard security[,]” and that

it is not plausible that a substantial risk of serious harm from near-continuous lighting was

so obvious that defendants must have known of it. As a result, the Fifth Circuit affirmed the

summary dismissal of a similar claim as frivolous and for failure to state a claim. See id.

(finding that “[b]ecause the policy of 24-hour illumination does not violate the Eighth

Amendment, Chavarria’s complaint about the policy is based upon an indisputably

meritless legal theory”); see also id. at 437 (Reavley, J., specially concurring to explain that

“with deference to those who are concerned about Mr. Chavarria’s illuminated cell, I regard

this judicial attention as much ado about nothing. A little cloth over his eyes would solve

the problem, negate deprivation, and escape this exercise in frivolity.”); Atkinson v. Johnson,

74 F. App’x 365, 367 (5th Cir. 2003) (finding that “Atkinson failed to show that any

substantial risk of harm to him resulting from implementation of” a policy of opening and

closing cell doors at night “was obvious”).

Here, Plaintiffs allegations do not show that the process of turning the lights on and

off during the night is intentionally designed to deprive him of sleep or sufficient to state a

viable Eighth Amendment claim. Even taking his allegations of true—including the

acknowledgement that the lights are turned on to perform counts—Plaintiff offers nothing to

suggest that the sleep disturbances of which he complains are done in an unnecessary or

wanton manner in order to prevent him from sleeping rather than resulting from activities

25

necessary to keep a community of over 2,600 persons functioning.’ Finally, Plaintiffs own

suggestion that the defendants “should have known” of the harm he allegedly suffered as a

result of the nighttime lighting process amounts to nothing more than a negligence claim.

He has not demonstrated that the risk of harm, even if substantial, was so obvious that any

reasonable official would have recognized it. “Actions and decisions by officials that are

merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference.”

Alton v. Tex. A&M Univ., 168 F.3d 196, 201 (Sth Cir. 1999). Plaintiff's objections are

overruled.

In sum, the Court notes that in their totality, while Plaintiff's allegations describe

uncomfortable conditions of his confinement on the Smith Unit ECB, they do not allege

that he was deprived of a minimum measure of life’s necessities. Accordingly, Plaintiffs

objections to the dismissal of these claims are overruled.

D. ADA, RA, and Equal Protection Claims

Plaintiff also brings claims under the ADA, RA, and Equal Protection Clause,

alleging that the defendants denied him—on the basis of his disability—benefits of the

programs and activities afforded non-disabled TDCJ prisoners. (See Dkt. No. 9 at 6-7.)

Specifically, Plaintiff alleges that he was denied the following: (a) housing commensurate

with his classification level; (b) a cellmate within 10 to 15 years his age range; (c) recreation

facilities commensurate with his security level; (d) food service equal to the quality received

by non-disabled TDCI prisoners of his classification level; (e) food service commensurate

with his medical and religious dietary restrictions; (f) rights, privileges, and protections

5 The Smith Unit has a maximum capacity of 2,234 inmates and employs over 400 individuals. See

http://tdcj.texas.gov/unit_directory/sm.html Ca visited Nov. 29, 2021).

under the Safe Prisons/PREA; (g) work assignment commensurate with his medical

restrictions; and (h) unit assignment commensurate with the ADA and RA. (id. at 6.)

The Magistrate Judge determined that Plaintiff failed to state a claim under the

Equal Protection Clause of the Fourteenth Amendment because he has not alleged

membership in a protected class. And the Magistrate Judge concluded that Plaintiffs ADA

and RA claims should be dismissed for failure to state a claim because (1) any individual-

capacity claims are not permitted under the statutes; (2) Plaintiff has failed to identify his

alleged disability—instead he claims that he is being treated as ifhe is disabled due to his

housing assignment in a heat-restricted unit; (3) he has not pleaded facts satisfying the

elements of either an ADA or RA claim; and (4) even if he had adequately claimed that the

TDCJ regarded him as disabled, his allegations fall far short of sufficiently alleging that

denial of any benefits was by reason of his disability. (See Dkt. No. 29 at 26-30.)

Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132. The ADA prohibits discrimination by public entities,

while the similarly-worded Rehabilitation Act (RA) applies to federally-funded programs

and activities. 29 U.S.C. § 794(a). The same definitions and legal standards apply to both

Acts, and the same remedies are available under both Acts. Kemp v. Holder, 610 F.3d 231,

234 (Sth Cir. 2010).

To state a claim under the ADA and RA, a plaintiff must show that (1) he has a

qualifying disability, (2) he is being denied the benefits of services, programs, or activities or

otherwise being discriminated against by a public entity, and (3) he is being discriminated

27

against because of his disability. Hale v. King, 642 F.3d 492, 499 (Sth Cir. 2011). A

qualifying disability is “a physical or mental impairment that substantially limits one or

more major life activities.” 42 U.S.C. § 12102(a)(1). The ADA places an “affirmative

obligation” on the state “to make reasonable accommodations” for persons with disabilities

in the provision of public services. Smith v. Harris County, 956 F.3d 311, 317 (Sth Cir. 2020).

Intentional discrimination is required in order to recover compensatory damages under the

ADA. Delano-Pyle v. Victoria County, 302 F.3d 567, 574 (Sth Cir. 2002).

The ADA protects people incarcerated in state prisons. Pennsylvania Dep't of Corr.

v. Yeskey, 524 U.S. 206, 213 (1998); Hale v. King, 642 F.3d 492 (Sth Cir. 2011). In the prison

context, failure to make reasonable accommodations to the needs of a disabled prisoner may

have the “effect of discriminating against that prisoner because the lack of accommodation

may cause the disabled prisoner to suffer more pain and punishment than non-disabled

prisoners.” McCoy v. Tex. Dep’t of Criminal Justice, C.A. No C-05-370, 2006 WL 2331055, at

*7 (S.D. Tex. Aug. 9, 2006) (citing United States v. Georgia, 546 U.S. 151, 160

(2006) (allegations, if true, that defendant refused to provide reasonable accommodations to

a paraplegic inmate, “in such fundamentals as mobility, hygiene, medical care,” resulted in

the disabled prisoner suffering serious punishment “without penal justification” and

supported a claim under the ADA)).

Plaintiff's objections on this portion of the FCR are brief and to the point. First,

Plaintiff argues that he is disabled within the meaning of the ADA, which “sufficiently

alleged violations of his Equal Protection.” (See Dkt. No. 33 at 7.) Then, he notes that he

named the defendants in both their individual and official capacities. (See id.) Plaintiff also

contends that he described his disabilities with particularity in his amended complaint and

28

also at the Spears hearing. (Id.) Additionally, Plaintiff asserts that his food allergies qualify

as a disability under the statutes. (See id. at 8.)

In support of his objection, he points to paragraphs 1-7 of his amended complaint,

which include details of his transfer to the Smith Unit, and certain medical restrictions that

were in place at the time. (See Dkt. No. 9 at 3.) Indeed, the information provided in the

amended complaint describes upper-body restrictions, work assignments, and physical

assessment codes that “indicate that [he has] permanent conditions that require ‘significant

limitations’ on [his] engaging in physical activities. (See id.) He claims that these conditions

qualify as disabilities within the definitions of the ADA and RA. (See Dkt. No. 33 at 7.)

Plaintiff further objects to the FCR’s assertion that he did not plead facts satisfying the

elements of the ADA and RA by pointing to the allegations in paragraphs 23-25 of his

amended complaint. (See Dkt. No. 33 at 8, citing Dkt. No. 9 at 6-7.) There, Plaintiff

describes services, programs, and activities allegedly afforded to non-disabled TDCJ

prisoners, such as housing, recreation facilities, job assignments, and food service

commensurate with his classification level, among other things. (See Dkt. No. 9 at 6.) And

he alleges he was denied these benefits because of his disability. (See Id.) Plaintiff also

alleged that the defendants discriminated against him based on—or because of—his

disability by placing in him in a prison facility designed for high security prisoners while

housing similarly situated heat-restricted prisoners of his minimum classification in non-

high-security designed housing. (/d.)

Initially, the Court finds that Plaintiff's objections to the Magistrate Judge’s analysis

of his Equal Protection claim and the conclusion that the ADA and RA do not permit

claims against individuals must be overruled. Disability, unlike race or national origin, is

29

not a suspect classification under Equal Protection analysis. See City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 440 (1985). And, although the ADA authorizes claims against a

“public entity,” it does not authorize individual liability. See Nottingham v. Richardson, 499

F. App’x 368, 376 n.6 (5th Cir. 2012) (citing Lollar v. Baker, 196 F.3d 603, 609 (Sth Cir.

1999)). So, Plaintiff's Equal Protection claims and any individual defendants named for

violations of the ADA and RA must be dismissed.

Finally, the Court understands the Magistrate Judge’s recommendation to dismiss

Plaintiffs ADA and RA claims in light of the “complex and tangled weave of factual

allegations” contained in his pleadings and testimony at the Spears hearing. But based on

Plaintiffs clarification that, in his view, he is disabled under the ADA—tather than just

“considered” disabled by the TDCJ—and the requirement to construe pro se allegations

liberally, the Court finds that Plaintiff has sufficiently pled that Smith Unit officials knew of

his alleged disabilities (including his food allergies) and either denied him the benefit of

certain programs or failed to accommodate his conditions.® He claims that his disabilities

qualify under the ADA and RA, that he has been denied the benefits of services, programs,

or activities, and that he is being discriminated against because of his disability. Those

allegations are sufficient to state claims under the ADA and RA. Thus, Plaintiffs

objections are sustained, in part, and the Court finds that Defendant TDCJ should be

required to answer or otherwise respond to Plaintiffs ADA and RA claims.’

6 The Court notes that this is merely a finding that Plaintiff has pled facts sufficient to proceed

through the course of the litigation—not a finding that his rights under the ADA and RA have, in

fact, been violated.

7 Plaintiff did not object to the Magistrate Judge’s foomote concluding that any claims of conspiracy

to discriminate under the ADA and RA should be dismissed, so any such claims will be dismissed

accordingly. (See Dkt. No. 29 at 29, n.8.) 30

E. Removal of Plaintiff's Medical Restrictions

In his next claim, Plaintiff alleged that Defendant Cubb—a Telford Unit employee—

was deliberately indifferent to his serious medical needs when he accessed Plaintiff's

medical records after his transfer to the Smith Unit and removed many of Plaintiff's medical

restrictions. Following removal of his medical restrictions, Plaintiff lost his medically

restricted job and was instead assigned to perform tasks that exacerbated existing medical

conditions.

The Magistrate Judge found that Plaintiffs claims, construed most generously,

demonstrated that Cubb’s actions were clearly erroneous given the fact that they were

reinstated three days later, but amounted to little more than negligence. (See Dkt. No. 29 at

42.) Thus, Plaintiff failed to meet the “extremely high standard” required to state a

deliberate indifference claim against Defendant Cubb. See Domino v. Tex. Dept’t of Criminal

Justice, 239 F.3d 752, 756 (5th Cir. 2001). And, even if Cubb’s actions were the result of a

nefarious motive, Plaintiff had not alleged facts showing anything beyond de minimis

injury—which provides an additional ground for dismissal. (See id.)

In his objections, Plaintiff restates his previous allegations—essentially arguing that

they support both the objective and subjective components of the deliberate-indifference

analysis. He reiterates his belief that Cubb’s actions were done “perniciously, without

relying on any medical examination ... .” (See Dkt. No. 33 at 9.) Plaintiff argues that

“Cubb knew that the assessment of medical restrictions directly and primarily affects prison

work assignments and a prisoner’s physical ability or limitations relevant to a particular

work assignment.” (Id.) In his supplemental objections, Plaintiff expands on his allegation

that Cubb knew what Plaintiff's physical restrictions were based upon his “PUHLES” code,

31

which was “3EP,” meaning that he had “significant medical impairments” that were

“permanent—no significant change in condition expected.” (See Dkt. No. 34 at 2.) Despite

this, Plaintiff alleges that on November 11, 2019, without ever having met or examined

Plaintiff, Cubb deleted his medical restrictions and downgraded his significant and

permanent medical conditions to reflect some minor condition. (See id.) Plaintiff further

notes that following his placement on an unrestricted work assignment, he suffered injuries

serious enough to result in a recommendation for surgery. (See Dkt. No. 33 at 11.) Plaintiff

contends that his resulting injuries are more than de minimis.

Plaintiff repeats his conclusory assertions that Cubb must have known what the

PUHLES codes meant and that his actions in deleting his restrictions were “knowingly

malicious and deliberately indifferent.” (See Dkt. No. 34 at 2.) Without offering any

additional factual support, Plaintiff asks the Court to require Defendant Cubb to answer to

his conclusory allegation that Cubb was deliberately indifferent to Plaintiff's medical needs.

(Id.). Buta “prisoner must show the defendant's ‘actual knowledge and conscious

disregard of the risk of harm to the plaintiff [and it] cannot be inferred from a prison

official’s mere failure to act reasonably [or] from negligence alone.’” Thompson v. Sharad,

847 Fed. App’x. 223, 224 (5th Cir. 2021) (quoting Domino v. Tex. Dep’t of Criminal Justice,

239 F.3d 752, 756 (5th Cir. 2001). The Court finds that Plaintiff's factual allegations show,

at most, negligence or malpractice but not deliberate indifference. His objections are

overruled.

32

4. 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 and requiring a

response on the following claims:

(a) Plaintiff's claim for injunctive relief under RLUIPA against Defendant

A. Gonzalez—in his official capacity as warden of the Smith Unit, and

(b) Plaintiff's claims against Defendant TDCJ for violations under the

ADA and RA.

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

28 U.S.C. § 1915(e)(2)(B)(i) 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-described 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 December G., 2021.

J wm Lowe U0 (TR

Unjeéd States District Judge

33