Saville v. Winston

IN THE UNITED STATES DISTRICT COURT October 23, 2019

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

GALVESTON DIVISION

JIMMY D. SAVILLE §

TDCJ # 01366096, §

§

Plaintiff, §

§

VS. § CIVIL ACTION NO. 3:17-0080

§

SERGEANT LARRY WINSTON, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff Jimmy D. Saville, an inmate in the Texas Department of Criminal Justice–

Correctional Institutions Division (“TDCJ”), filed a civil-rights complaint (Dkt. 1) under

42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Defendant Larry

Winston filed a motion for summary judgment (Dkt. 55) seeking dismissal of all claims

against him. Plaintiff filed a response and a cross-motion for summary judgment (Dkt. 57).

The motions are ripe for consideration. Having considered the parties’ briefing, the

applicable law, and all matters of record, the Court concludes that Defendant’s summary-

judgment motion should be granted in part and denied in part and that Plaintiff’s motion

should be denied for the reasons explained below. The Court will stay and

administratively close this case while it locates pro bono counsel to represent Saville at

trial.

I. BACKGROUND

Saville alleges that Sergeant Winston delayed his access to medical care when

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Saville suffered a heart attack on June 15, 2016, at TDCJ’s Darrington Unit. Winston

previously moved for judgment on the pleadings, and the Court’s opinion summarized

Saville’s allegations as follows:

In his pleadings, Plaintiff alleges that he had severe chest pain on June 15,

2016, while at the “trusty camp” at the Darrington Unit (Dkt. 30, at 5-6). He

states that he reported the chest pain to Winston more than once, but that

Winston did not take action to assist him or call for medical attention (id. at

6). Plaintiff states that, because of Winston’s conduct, he sat for “another 25

to 30 min[u]tes in the hot sun” and that his pain worsened (id. at 7). Other

persons then helped Plaintiff to a room with a fan, where Plaintiff waited an

additional fifteen minutes for medical staff to arrive (id. at 7-8). The unit’s

medical staff sent Plaintiff to Angleton Hospital, where doctors told him that

he had suffered a heart attack (id. at 8-9). Plaintiff then was transported to

John Sealy Hospital and remained hospitalized for five days (id. at 9).

(Dkt. 52, at 1-2).1 Based on these allegations, the Court denied Winston’s motion for

judgment on the pleadings and set a deadline for him to file a summary-judgment motion:

Plaintiff has pleaded that he reported his “severe” chest pain to Winston more

than once, and that Winston nevertheless required him to wait in the sun

while his pain worsened. He also has pleaded that medical attention was

delayed by approximately 45 minutes, and that he suffered a heart attack

requiring emergency medical care and a five-day hospitalization. These

allegations are sufficient at the pleading stage.

Winston’s motion for judgment on the pleadings therefore will be denied.

Winston may reurge his arguments in a motion for summary judgment,

which will allow reference to matters outside the pleadings.

(Dkt. 52, at 5-6) (citation omitted).

Defendant now has filed his summary-judgment motion (Dkt. 55), accompanied by

an affidavit from Winston recounting the events of June 15, 2016. Winston states that he

1 Throughout this Memorandum, the Court’s citations to specific pages in the record refer to

the pagination of docket entries on the Court’s electronic case filing (“ECF”) system.

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worked at the Darrington Unit trusty camp along with three “dorm officers” and one “utility

officer” (Dkt. 55-1, at 2). He avers that, when he “received a call from a dorm officer that

Offender Saville wanted medical attention,” he “advised that the dorm officer should have

Saville come to the turn-out shed” (id.). Saville claims that Winston gave these instructions

at approximately 11:20 a.m., by which time 20 minutes had elapsed since he first reported

his chest pain to the dorm officer (Dkt. 57, at 1-2).

Winston’s affidavit states that, after speaking with Saville in the shed, he called for

medical help:

I asked Saville what was wrong. He said that he had chest pains. I responded

that I would call medical. I called medical and told them of Offender

Saville’s complaints. I was asked specific questions about Saville’s

appearance. I observed that he did not appear to be in distress—that he was

able to stand, that he was not sweating and that he was speaking in a normal

voice. He was, in fact, cursing and ranting that he did not want to ride the

trailer. I reported these facts to the person I spoke with in the medical

department, who advised me to get Offender Saville to the back gate.

(Dkt. 55-1, at 2-3). In his sworn declaration, Saville agrees that he was “calm” and

“coherent” and spoke “in a normal voice” when he told Winston about his chest pains (Dkt.

57, at 5).

Saville alleges that, rather than transporting him immediately for medical help,

Winston delayed his access to medical care when he “chose to make [Saville] ride on the

trailer, in the hot sun, with the other offenders that were going to the back gate” (id.). He

claims that, that after he got on the trailer as Winston instructed, he “sat on the trailer in

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the hot sun for another 20 minutes until the trailer was filled up” (id. at 2).2 Winston agrees

that the trailer was delayed by approximately 20 minutes and, although he does not explain

the reason, states that he did not cause the delay:

I advised Saville to get on the trailer. He was agitated by this and said that

he would not get on the trailer. There was a delay in transporting offenders

to the back gate, which was not due to any action on my part. At some point

he got on the trailer and was transported to the main building. From the time

I first saw Offender Saville until the trailer left the turn-out shed was a period

of approximately twenty (20) minutes.

(Dkt. 55-1, at 3). He avers that he was “unaware of Offender Saville’s medical history,

including any alleged heart-related condition” (id.).

Winston maintains that the trailer was the only way to transport Saville to the

medical department. See id. (“[t]here was a tractor-trailer at the turn-out shed, which was

the only means of transporting offenders to the main building where Saville would have

access to the medical department”). However, Saville avers that a state vehicle was

available at the trusty camp for Winston’s use and that TDCJ policy required Winston to

use the vehicle for a medical emergency (Dkt. 57, at 5). He also alleges that, when he

arrived at the back gate, an officer there told him that Winston “was suppose[d] to bring

you directly to medical instead of making you ride that trailer” (id. at 2).

Saville estimates that he arrived at the back gate at 11:40 a.m. (id.). Winston has

submitted Saville’s medical records from the clinic, which show that medical personnel

were notified by security staff at 11:30 a.m. that Saville needed medical attention; that

2 In other filings, Plaintiff estimates that he sat on the trailer for 25-30 minutes (Dkt. 30, at

7).

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medical staff “arrived” at 11:35 a.m., presumably at the back gate to wait for the trailer

bringing Saville; and that Saville’s “arrival” at an unspecified location, presumably the

back gate or the clinic, was at “11:45 11:50” (Dkt. 55-2, at 4).

TDCJ’s clinic records reflect that Saville arrived by stretcher in stable condition and

complained of chest pain radiating to his left arm (id.). He described the chest pain as

sharp, constant, and radiating, and ranked its severity as 8 out of 10 (id.). The nursing

assessment noted normal respirations and normal arm strength on both sides (id. at 5). At

12:00 noon, Saville was given aspirin to chew and “nitro x1” and reported that his chest

pain “remain[ed] at a 7/10 after 1st nitro” (id. at 6). An EKG showed normal sinus rhythm

(id.). At 12:05 p.m. Saville received a second “nitro” and reported chest pain of 5 out of

10 (id.). At 12:10 p.m. Saville received a “3rd nitro” and stated that his chest pain remained

the same after the third dose (id.). Clinic staff notified a physician, Dr. Owusu, who

ordered that Saville go to an emergency room for evaluation of chest pain “unrelieved by

nitro x3” (id.). At 1:15 p.m., Saville departed by ambulance (id.). He states that doctors

at Angleton Hospital told him that he had suffered a heart attack and transferred him to

John Sealy Hospital in Galveston, where he was hospitalized for five days (Dkt. 57, at 3).

Winston has not submitted, and the Court’s current record does not contain, Saville’s

medical records from either hospital.

Plaintiff claims that Winston violated his Eighth Amendment right to adequate

medical care. He alleges that his heart attack might have been prevented if he had received

prompt medical attention. See Dkt. 32, at 6 (alleging that by the time he arrived at the back

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gate, he “was in severe pain” and “[his] condition had worsened to where [he] was needing

help to move”); Dkt. 57, at 5 (stating in sworn declaration that he “suffer[ed] a heart attack,

which could have been prevented had Serg[e]ant Winston taken me directly to the

infirmary instead of making me ride on the trailer”).

Winston maintains that, according to TDCJ policy, he did not have the responsibility

to call 911 for a medical emergency, but only to report Saville’s medical needs to the

medical department:

Per TDCJ policy, medical is tasked with the responsibility of calling 911, if

needed. My understanding of the policy is that I was to report Offender

Saville’s concerns/condition to medical and that medical would address his

medical needs. I did not do anything to hinder Offender Saville getting

medical treatment.

(Dkt. 55-1, at 3). He submits AD-06.07, a TDCJ administrative directive covering inmates’

access to health services (Dkt. 55-3). The procedures dictate that “[s]ecurity staff shall

facilitate access to health services” and “shall not block of hinder access to health services”

(id. at 2). They also provide guidelines for handling urgent medical complaints:

IV. All urgent requests and complaints shall be address by health care

professionals immediately.

A. Each unit shall post procedures for contacting health care

personnel 24 hours per day.

B. Offenders with conditions such as . . . . chest pains . . . shall be

afforded immediate access to health services.

C. Institutional operations such as count, feeding, work schedules,

or similar routine operations, may not be used as reason to

delay access to health services staff for urgent or emergency

complaints.

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V. The judgment of health care professionals regarding health-related

conditions has priority over routine unit operations.

(id. at 3).

Saville also brings claims against Warden Baker, on whom the Court has not

authorized service (Dkt. 37, at 2). Saville alleges that, while he was in the TDCJ clinic,

Warden Baker came to speak with him:

Warden Eddie Baker came to the infirmary to talk to Saville, and Saville told

him about how [S]ergeant Winston treated him at the trusty camp and how

he made Saville ride on the trailer to the back gate, instead of taking him

directly to medical. Warden Baker told a m[a]jor and [lieutenant] who [were]

present to go to the trusty camp and find out why Saville was made to ride

the trailer instead of being taken directly to the infirmary in a state vehicle of

the trusty camp.

(Dkt. 57, at 2). In his supplemental complaint, Saville also alleges that, although Baker

sent a major and a lieutenant to speak with Winston about the incident, he “did not act real

concerned” and did not discipline Winston (Dkt. 30, at 9).

Saville sues both Winston and Baker in their official and individual capacities. He

seeks declaratory judgment in his favor as well as nominal, compensatory, and punitive

damages (Dkt. 30, at 21-22).

II. STANDARD OF REVIEW

A. Review of Pro Se Pleadings

Because the plaintiff is an inmate bringing suit about prison conditions, the Court is

required by the Prison Litigation Reform Act (“PLRA”) to scrutinize the claims and

dismiss the complaint at any time, in whole or in part, if it determines that the complaint is

frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b);

28 U.S.C. § 1915(e)(2)(B); see 42 U.S.C. § 1997e(c)(1). A claim is frivolous if it lacks

any arguable basis in law or fact. Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).

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

theory. . . . A complaint lacks an arguable basis in fact if, after providing the plaintiff the

opportunity to present additional facts when necessary, the facts alleged are clearly

baseless.” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (internal quotation marks

and citation omitted).

In reviewing the pleadings and litigation history, the Court is mindful of the fact

that Plaintiff proceeds pro se. Complaints filed by pro se litigants are entitled to a liberal

construction and, “however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal

quotation marks and citation omitted). Even under this lenient standard a pro se plaintiff

must allege more than “‘labels and conclusions’ or a ‘formulaic recitation of the elements

of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation

omitted). Regardless of how well-pleaded the factual allegations may be, they must

demonstrate that the plaintiff is entitled to relief under a valid legal theory. See Neitzke v.

Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.

1997).

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B. Summary Judgment—Rule 56

Defendant has moved for summary judgment. Rule 56 of the Federal Rules of Civil

Procedure mandates the entry of summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). Once the movant presents a properly

supported motion for summary judgment, the burden shifts to the nonmovant to show with

significant probative evidence the existence of a genuine issue of material fact. Hamilton

v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). “A fact is ‘material’ if its

resolution in favor of one party might affect the outcome of the lawsuit under governing

law.” Id. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return

a verdict for the nonmoving party.” Id. The nonmoving party must present specific facts

which show “the existence of a genuine issue concerning every essential component of its

case.” Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir. 2012) (citation and

internal quotation marks omitted).

In deciding a summary-judgment motion, the reviewing court must “construe all

facts and inferences in the light most favorable to the nonmoving party.” Dillon v. Rogers,

596 F.3d 260, 266 (5th Cir. 2010) (internal citation and quotation marks omitted).

However, the non-movant cannot avoid summary judgment simply by presenting

“conclusional allegations and denials, speculation, improbable inferences, unsubstantiated

assertions, and legalistic argumentation.” Jones v. Lowndes Cty., 678 F.3d 344, 348 (5th

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Cir. 2012) (internal citation, alteration and quotation marks omitted); see Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Likewise, Rule 56 does not

impose upon the Court a duty to sift through the record in search of evidence to support a

party’s opposition to summary judgment. Evidence not referred to in the response to the

motion for summary judgment is not properly before the Court, even if it exists in the

summary-judgment record. Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).

Although Plaintiff is proceeding pro se, “the notice afforded by the Rules of Civil

Procedure and the local rules” is considered “sufficient” to advise a pro se party of his

burden in opposing a summary-judgment motion. Martin v. Harrison Cty. Jail, 975 F.2d

192, 193 (5th Cir. 1992). Even a pro se plaintiff must specifically refer to evidence in the

summary-judgment record in order to place that evidence properly before the court. Outley

v. Luke & Assocs., Inc., 840 F.3d 212, 217 & n.9 (5th Cir. 2016); E.E.O.C. v. Simbaki, Ltd.,

767 F.3d 475, 484 (5th Cir. 2014) (“Despite our general willingness to construe pro se

filings liberally, we still require pro se parties to fundamentally abide by the rules that

govern the federal courts. Pro se litigants must properly . . . present summary[-]judgment

evidence”) (internal citation and quotation marks omitted).

III. DISCUSSION

A. Official Immunity

Defendants were TDCJ officials at all times relevant to Plaintiff’s allegations. A

claim against a state employee in his or her official capacity is a claim against the State of

Texas. See Mayfield v. Tex. Dep’t of Crim. Justice, 529 F.3d 599, 604 (5th Cir. 2008).

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Because the Eleventh Amendment protects the states’ sovereign immunity, federal courts

lack jurisdiction over suits against a state for money damages unless the state has waived

its immunity or Congress has clearly abrogated that immunity. NiGen Biotech, L.L.C., v.

Paxton, 804 F.3d 389, 393–94 (5th Cir. 2015); Moore v. La. Bd. Of Elem. and Secondary

Educ., 743 F.3d 959, 963 (5th Cir. 2014). Texas has not waived its Eleventh Amendment

immunity, and Congress did not abrogate that immunity when enacting § 1983. NiGen,

804 F.3d at 394.

Defendant’s motion for summary judgment therefore is granted in part. Plaintiff’s

claims for money damages against Defendants in their official capacities will be dismissed

for lack of jurisdiction because the State is immune under the Eleventh Amendment.

B. Qualified Immunity

Defendant Winston has invoked qualified immunity. Plaintiff bears the burden to

negate the defense. See Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017); King v.

Handorf, 821 F.3d 650, 653 (5th Cir. 2016). Determination of qualified immunity requires

a bifurcated analysis: first, the court must decide “whether the undisputed facts and the

disputed facts, accepting the plaintiffs’ version of the disputed facts as true, constitute a

violation of a constitutional right”; and second, the court must determine “whether the

defendant’s conduct was objectively reasonable in light of clearly established law.”

Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015) (internal quotation marks and

citation omitted); see Hanks, 853 F.3d at 744; Thompson v. Mercer, 762 F.3d 433, 437 (5th

Cir. 2014). Qualified immunity protects “all but the plainly incompetent or those who

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knowingly violate the law.” Pratt v. Harris Cty., Tex., 822 F.3d 174, 181 (5th Cir. 2016)

(internal citation and quotation marks omitted). “If officers of reasonable competence

could disagree as to whether the plaintiff’s rights were violated, the officer’s qualified

immunity remains intact.” Hanks, 853 F.3d at 744 (internal citations and quotation marks

omitted).

A defendant’s good-faith assertion of qualified immunity “alters the usual

summary[-]judgment burden of proof, shifting it to the plaintiff to show that the defense is

not available.” King, 821 F.3d at 653 (internal citation and quotation marks omitted).

The plaintiff must rebut the defense by establishing that the official’s

allegedly wrongful conduct violated clearly established law and that genuine

issues of material fact exist regarding the reasonableness of the official’s

conduct. To negate a defense of qualified immunity and avoid summary

judgment, the plaintiff need not present absolute proof, but must offer more

than mere allegations.

Id. at 654 (internal citation and quotation marks omitted).

A reviewing court may address the prongs of the qualified-immunity analysis in any

sequence, depending on the circumstances of the particular case at hand. Pearson v.

Callahan, 555 U.S. 223, 236 (2009); Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017).

Winston argues that summary judgment is appropriate on qualified-immunity grounds

because Saville has not demonstrated a genuine issue of material fact under Eighth

Amendment standards. The Court therefore proceeds to analyze the merits of Saville’s

claim.

C. Eighth Amendment

Saville alleges that Winston delayed his access to medical care when Saville

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reported severe chest pain. He brings his claim under 42 U.S.C. § 1983, which provides a

vehicle for a claim against a person “acting under color of state law,” such as a state prison

official, for a constitutional violation. See Pratt, 822 F.3d at 180; Townsend v. Moya, 291

F.3d 859, 861 (5th Cir. 2002). Because the plaintiff was, at all relevant times, a convicted

felon in state prison, his claims regarding denial of adequate medical care are governed by

the Eighth Amendment prohibition against “cruel and unusual” conditions of confinement.

Rhodes v. Chapman, 452 U.S. 337, 346 (1981); see Helling v. McKinney, 509 U.S. 25, 33

(1993) (the Eighth Amendment “requires that inmates be furnished with the basic human

needs, one of which is ‘reasonable safety’”).

To prevail on his Eighth Amendment claim, a plaintiff must demonstrate that the

defendant exhibited “deliberate indifference” to his “serious medical needs, constituting an

unnecessary and wanton infliction of pain.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir.

2006) (internal citations and quotation marks omitted); see Estelle v. Gamble, 429 U.S. 97,

104 (1976). The Eighth Amendment standard has both an objective and subjective

component. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Cleveland v. Bell, 938 F.3d

672, 676 (5th Cir. 2019); Gobert v. Caldwell, 463 F.3d 339, 345-46 (5th Cir. 2006). A

plaintiff must show that the defendant was aware of facts from which the inference could

be drawn of a substantial risk of serious harm; that the defendant subjectively drew the

inference that the risk existed; and that the defendant disregarded the risk. Cleveland, 938

F.3d at 676. Deliberate indifference is an “extremely high standard.” Domino v. Tex.

Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). It requires “more than an

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allegation of mere negligence, but less than an allegation of purpose or knowledge.”

Hinojosa v. Livingston, 807 F.3d 657, 665 (5th Cir. 2015). A significant risk that the

official “should have perceived but did not” is insufficient for a constitutional violation.

Cleveland, 938 F.3d at 676. A delay in medical care can constitute a constitutional

violation “only if there has been deliberate indifference that results in substantial harm.”

Easter, 467 F.3d at 463 (internal citation and quotation marks omitted).

Plaintiff claims that Winston was deliberately indifferent because his severe chest

pain was a serious medical need and, although he informed Winston of the pain several

times, Winston delayed the call for medical assistance (Dkt. 30, at 12-14; Dkt. 57, at 5).

Plaintiff has presented evidence that the severe chest pain was a symptom of a heart attack,

and claims that the heart attack could have been prevented if he had received immediate

medical attention (Dkt. 57, at 5).

Winston argues that “there is no evidence that Winston both knew of and

disregarded an excessive risk that Saville would have a heart attack” (Dkt. 55, at 10). He

states that he was unaware that Saville had a heart condition that made him “susceptible to

a heart attack” (id.). He points out that he called for medical attention, even though Saville

did not appear to be in medical distress, and claims that he complied with AD-06.07’s

directive not to “block or hinder” Saville’s access to health services (id. at 11).

At this stage of the proceedings, genuine issues of material fact remain on the

essential elements of Saville’s case. See Cleveland, 938 F.3d at 676. Regarding the first

element, the parties dispute whether Winston was aware of facts from which he could have

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inferred that Saville faced a substantial risk of serious harm. Saville claims that he told

Winston multiple times that he was experiencing severe chest pain, and Winston does not

contest this point, although he maintains that Saville was in no apparent distress. Although

Winston states that he was unaware of Saville’s medical history, such lack of awareness

would not foreclose a finding that Winston disregarded a substantial risk of serious harm

based on a new, urgent medical complaint. The parties also dispute whether Winston

actually drew an inference of the risk to Saville. As for deliberate indifference, Winston

does not directly address Saville’s allegation that a state vehicle was available nearby and

should have been used to transport him immediately. Although Winston presents evidence

that he called medical personnel in response to Saville’s complaints, and thus did not deny

him medical attention, he does not squarely address Saville’s allegation that Winston was

responsible for the delay in medical treatment and that immediate medical treatment could

have prevented the heart attack.

Both parties’ summary-judgment motions therefore will be denied as to Saville’s

Eighth Amendment claim regarding delayed medical care. Winston’s summary-judgment

motion also is denied as to qualified-immunity protection. At this stage of the litigation,

the record contains genuine issues of material fact as to whether Winston’s conduct

violated the Eighth Amendment and whether his conduct was reasonable. See King, 821

F.3d at 654.

D. Warden Baker

The Court previously withheld service of process on Warden Baker, and now

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examines whether Saville’s claims against Baker are appropriately dismissed for failure to

state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B) (“the court

shall dismiss the case at any time if the court determines that . . . the action . . . fails to state

a claim upon which relief may be granted”); 42 U.S.C. § 1997e(c)(1) (authorizing dismissal

of frivolous claims on the court’s own motion). Saville’s allegations against Baker are that

he did not seem “real concerned” when speaking with Saville at the clinic, that he sent two

officers to find out why Saville was not immediately transported for medical attention in

the state vehicle, and that he failed to discipline Winston (Dkt. 30, at 9; Dkt. 57, at 2).

A supervisory official may be held liable under § 1983 “only if (1) he affirmatively

participates in the acts that cause the constitutional deprivation, or (2) he implements

unconstitutional policies that causally result in the constitutional injury.” Porter v. Epps,

659 F.3d 440, 446 (5th Cir. 2011) (internal quotation marks and citations omitted). See

Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006) (“[t]here is no vicarious or

respondeat superior liability of supervisors under section 1983”). A plaintiff seeking to

establish “supervisor liability for constitutional violations committed by subordinate

employees . . . must show that the supervisor acted, or failed to act, with deliberate

indifference to violations of others’ constitutional rights committed by their subordinates.”

Porter, 659 F.3d at 446 (internal quotation marks, alterations, and citation omitted)

(emphasis original). A failure-to-supervise or failure-to-train claim also requires a showing

of deliberate indifference by the supervisor. See Westfall v. Luna, 903 F.3d 534, 552 (5th

Cir. 2018); Porter, 659 F.3d at 446.

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In this case, Saville does not allege that Baker was personally involved in the alleged

violation of his Eighth Amendment rights, i.e., the delay in medical treatment. He also

fails to allege facts that could support a finding of deliberate indifference on Baker’s part.

His allegations that Baker seemed unconcerned, sent subordinate officers to look into the

situation, and failed to discipline Winston are insufficient to state a non-frivolous claim for

relief under the Eighth Amendment. See Porter, 659 F.3d at 446.3

Plaintiff’s claims against Warden Baker will be dismissed with prejudice.

E. Appointment of Counsel

Saville previously filed several motions for appointed counsel, which the Court

denied without prejudice because, at the time, counsel was unnecessary (Dkt. 26). The

Court now finds that the interests of justice dictate that Saville have assistance of counsel

to proceed to trial. This case will be stayed and administratively closed while the Court

locates pro bono counsel.

IV. CONCLUSION

For the reasons stated above the Court ORDERS that:

1. Winston’s motion for summary judgment (Dkt. 55) is GRANTED in part

and DENIED in part. Summary judgment is GRANTED as to Saville’s claims for money

damages against Defendants in their official capacities, and these claims are DISMISSED

3 Additionally, to the extent Saville brings a claim in this lawsuit that Baker violated Texas

Penal Code § 39.04, the claim must be dismissed because the criminal statute he cites does not

create a private right of action. See Brown v. de la Cruz, 156 S.W.3d 560, 567 & n.39 (Tex. 2004);

Van Duzer v. U.S. Bank Nat’l Ass’n, 995 F. Supp. 2d 673, 699 (S.D. Tex. 2014).

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with prejudice for lack of jurisdiction. Summary judgment is DENIED as to Saville’s

Eighth Amendment claim against Winston for delayed medical attention.

2. Plaintiff’s motion for summary judgment (Dkt. 57) is DENIED because, on

the current record, genuine issues of material fact preclude judgment as a matter of law in

Plaintiff’s favor.

3. Saville’s claims against Warden Baker are DISMISSED with prejudice

under 28 U.S.C. § 1915(e)(2)(B).

4. Saville may proceed to trial on his Eighth Amendment claim against Sergeant

Winston. This case is STAYED and ADMINISTRATIVELY CLOSED while the Court

locates pro bono counsel to represent Saville at trial. The Court will enter an order with

scheduling details when the case is reinstated.

October 23rd

SIGNED at Galveston, Texas, on , 2019.

___________________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

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