Mark v. Hickman

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT October 31, 2019

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

DARRELL JACOBY MARK, §

TDCJ #02054187, §

Plaintiff,

VS. § CIVIL ACTION NO. H-17-2784

RONALD HICKMAN, et al,

Defendants. ,

MEMORANDUM AND ORDER

Plaintiff Darrell Jacoby Mark (TDCJ #02054187) (“Mark”) is an inmate presently in

custody of the Texas Department of Criminal Justice - Correctional Institutions Division. He

brings civil rights claims pursuant to 42 U.S.C. § 1983 against all Defendants and a related state

law claim against Defendant Detention Officer Vanesha Lashon Lee (“Lee”) for acts and

omissions that occurred while he was a pre-trial detainee in the Harris County Jail (“Jail”).

Although Mark originally filed this case pro se, he is now represented by counsel. Pending is

Defendants Sheriff Ronald Hickman’s and Sergeant John Revelle’s Motion to Dismiss (Doc. No.

72). The Court has carefully considered the pleadings, motion, response, and applicable law, and

concludes as follows.

1 BACKGROUND

The following allegations, which the Court accepts as true for the purposes of this motion

to dismiss, are set forth in the Mark’s Amended Complaint.!

On July 26, 2015, Mark’s uncle, Roald Mark (“Uncle Roald”), came to the Jail to visit

Mark and waited for hours to see him, but no one brought Mark to the visitation room. Because

generally Amended Complaint (“AC”), Doc. No. 68 at FJ 12-38.

Mark missed this visit with his uncle, he filed a grievance against Lee, who was the guard on

duty in his pod at the time.

On August 10, 2015, Defendant Sergeant John Revelle (“Revelle”), Lee’s direct

supervisor, called Mark into his office to discuss the grievance. At that meeting, Revelle offered

to double Mark’s visitation time so that the grievance against Lee could be closed. Mark

declined the offer and explained that he wanted steps taken to prevent similar conduct in the

future. That same day, Revelle spoke to Lee about the grievance. Lee then confronted Mark and

demanded that he withdraw the grievance because it was the second one she had received and

her job was in jeopardy unless Mark withdrew his grievance. Mark refused, indicating that he

would need to talk to his uncle because it was his uncle’s time that was wasted. Uncle Roald

supported Mark’s decision not to withdraw the grievance and told Mark that Lee could call him

if she wanted to know his reasons. Lee called Uncle Roald to request that Mark withdraw the

grievance, but he refused. Lee told Uncle Roald that she might lose her job, but this did not

persuade him to change his mind.

Shortly thereafter, Mark learned that Lee had ties to several inmates who could harm him.

As a result of intimidation and fearing for his safety, Mark submitted false statements on August

11, 2015 and August 13, 2015, indicating that the grievance had been resolved.

Lee was the subject of at least two Internal Affairs (“IA”) investigations that were

pending at the time Mark filed his grievance: (1) IAD #15-0390-0501, initiated April 2015,

regarding an incident where one inmate was missing for an entire day because Lee did not

properly account for the inmates in her pod, and JA considered Lee untruthful in the course of

the investigation; and (2) IAD #15-0439-0515, initiated May 2015, regarding an incident where

Lee transported an inmate without proper restraints and at least one detention officer was injured

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as a result.

On September 1, 2015, IA initiated a third investigation (IAD #2015-00735) in

connection with allegations that Lee was dating an inmate and smuggling contraband into the Jail

for that inmate. On September 10, 2015, Lee was suspended for 3 days with 90 days probation

after the Administrative Disciplinary Committee sustained IAD #15-0390-0501, the April 2015

investigation, regarding Lee’s failure to account for an inmate and being untruthful in the course

of the investigation.

On September 13, 2015, Lee, apparently unaware that Mark had withdrawn the

grievance, confronted him and demanded that he retract his grievance. At that time, Lee

threatened Mark, telling him, “You don’t know me, you don’t know who I am, but you’re about

to find out soon enough.” Unsure of how to respond, Mark returned to his housing pod, Pod 6E.

Lee then granted inmate Kenneth Foley, who resided in Pod 6D, access to Pod 6E. Lee

did not document Foley’s access to Mark’s pod. As soon as Foley gained access to Mark’s pod,

he asked, “Who is Mark?” Lee had given Mark’s name to Foley and ordered him to intimidate

Mark. When Foley found Mark, he asked Mark if he wrote a grievance against Lee, and Mark

responded that he had done so because of his missed visitation. Foley told him not to pursue the

grievance because the inmates needed people like Lee to “get stuff,” meaning contraband. Foley

asked Mark to withdraw the grievance as a personal favor to him and that he had weed and

cigarettes coming to the Jail the following week, which he would share with Mark if Mark made

the situation go away. Mark told Foley that he did not want the contraband, but that they would

not have any problems going forward.

Foley went straight to the picket where Lee was watching and started talking to her. As

Lee stared at Mark through the glass, he mouthed, “You’re foul. You’re foul.” Lee started

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shaking her head at Mark. Less than 5 minutes later, Lee and another guard granted inmate

Jamari Martinez (“Martinez”), who also resided in Pod 6D, undocumented access to Pod 6E.

Lee and Martinez were in a romantic relationship, and Lee smuggled contraband into the Jail for

him. When Martinez entered the cell, he asked, “Who is Mark?” When Mark responded,

Martinez aggressively told him that they needed to go to the corner and “talk.” Mark understood

this as a threat because going to the corner to “talk” meant fighting. Martinez demanded,

“What’s this I heard about you going to snitch on Ms. Lee?” Mark replied that he had not

snitched and explained he missed a family visit. Martinez got ready to attack Mark, but Mark’s

cellmates in Pod 6E intervened and stopped the fight from happening. Mark told Martinez to

leave. As Martinez exited the pod, Lee came on over the intercom and asked what was going on.

One of the cellmates yelled back, “This is the second guy you sent in here to intimidate Mark.

There won’t be a third.” Lee denied sending inmates in to intimidate Mark but told Martinez to

hurry up and get out of Pod E. Martinez then spoke to Lee, who shook her head at Mark.

On September 16, 2015, there was a riot involving 20-30 inmates led by Foley and

Martinez, who attacked Mark while he waited in the sixth floor church for services to start. Lee

had orchestrated the attack to intimidate and retaliate against Mark for filing a grievance against

her. At the time of the attack, no detention officers were present in the church or hallway to

supervise inmates and the number of inmates on the sixth floor exceeded the number allowed by

Jail policies.

Mark suffered a lacerated lip and other injuries to his face and the back of his head as

well as emotional distress. Following the attack, Mark submitted a statement detailing both the

initial intimidation by Foley and Martinez and the attack.

Mark claims that Harris County enabled Lee to direct Foley and Martinez to confront,

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intimidate, and physically harm Mark because it failed to enforce its own policies and failed to

train and supervise its detention officers despite knowing that detention officers were engaging

in conduct that would result in constitutional violations and injury to inmates. Mark contends

that Harris County had a custom or practice of tolerating such misconduct.

Mark alleges that another inmate, Jose Silva, filed a grievance against Lee on July 15,

2015, alleging that she had deprived him of medical attention and had repeatedly harassed him.

In the course of that investigation, Harris County and Revelle were informed and aware that Lee

was supplying drugs and other contraband to numerous inmates, including Martinez, in exchange

for financial compensation, and that these inmates resided in Pods 6D and 6E, Lee’s assigned

pods, and yet they did not reassign Lee, nor did they provide Lee with additional training or

supervision pending an investigation. Mark contends that IA did not even begin the

investigation into these serious allegations until September 2015, waiting over a month after

knowing about them.

Mark also contends that on July 30, 2015, inmate Ivory Johnson informed detention

officers about being physically threatened by inmates from Pod 6E, including Foley and

Martinez. Johnson had informed officials that as long as Lee supervised the sixth floor, his

safety was in jeopardy because Lee was dating one of the inmates and would not put a stop to the

threats. Mark alleges that despite these allegations, Lee was not reassigned or provided

additional training or supervision pending an investigation, and no affirmative steps were taken

to ensure inmate safety. Again, IA waited a month, until the beginning of September, to

investigate the serious allegations against Lee.

Mark alleges that Silva’s and Johnson’s grievances were made while Lee was already the

subject of two IA investigations, yet neither Harris County nor Revelle took prompt action to

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investigate, suspend, or re-assign Lee. Mark further alleges that several detention officers were

aware of rumors that Lee was in a relationship with inmate Martinez and/or inmate Jamon Smith

and smuggled contraband into the Jail for both inmates. Detention Officer Chandra Rush, for

example, was aware that Lee removed Martinez from his housing pod two to three times a week

to speak with him outside of his cell. Despite these allegations, no one acted to remove Lee from

duty on the sixth floor or to otherwise protect the inmates on that floor.

Mark also alleges that when IA opened its third investigation of Lee on September 1,

2015, officials should have scrutinized Lee’s record and intervened in the situation promptly.

However, it was only after the September 16, 2015 attack that Mark was moved for his safety.

Mark asserts Fifth and Fourteenth Amendment due process claims (individual and

official capacity), First Amendment retaliation claim (individual capacity), and a state law claim

for assault against Lee (Counts 1, 2, 4, and 5, respectively); Fifth and Fourteenth Amendment

due process claim against Revelle in his individual capacity for failure to protect (Count 3);

conditions of confinement deprivation of right to reasonable safety under the Fourteenth

Amendment and deprivation of right to be free from retaliation under the First Amendment

against Defendants in their official capacities, i.e., Harris County (Counts 6 & 7). Mark moves

for leave to amend if any of his claims are subject to dismissal. See Doc. No. 77 at 24.

Defendants Revelle and Hickman move to dismiss the claims against them, contending

that the Fifth Amendment claims should be dismissed because the Fourteenth Amendment Due

Process Clause, not the Fifth Amendment Due Process Clause, governs this dispute; the official

capacity claims are redundant to claims against Harris County; Revelle was not deliberately

indifferent to a substantial risk of serious harm to Mark’s safety; and Harris County or the

defendants in their official capacities did not have a policy, practice, or custom that was the

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moving force of the violation of Mark’s constitutional rights. These Defendants do not challenge

the individual capacity claims against Lee (Counts 1, 4, and 5) at this time.

II. LEGAL STANDARDS

A. Rules 12(b)(6) and 12(c)

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the filing of a motion to

dismiss a case for failure to state a claim upon which relief can be granted. FED. R. CIv. P.

12(b)(6). A motion to dismiss for failure to state a claim that is filed after a defendant files an

answer is a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).

See Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314, 317 n.5 (Sth Cir. 2009); Jones □□□

Greninger, 188 F.3d 322, 324 (Sth Cir. 1999). The standard for a Rule 12(c) motion is identical

to the standard for a Rule 12(b)(6) motion. Waller v. Hanlon, 922 F.3d 590, 599 (Sth Cir. 2019)

(citing Doe v. MySpace, Inc., 528 F.3d 413, 418 (Sth Cir. 2008)).

The court construes facts in the light most favorable to the nonmoving party, as a motion

to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Leal v. McHugh,

731 F.3d 405, 410 (Sth Cir. 2013) (citing Turner v. Pleasant, 663 F.3d 770, 775 (Sth Cir. 2011)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially

plausible when a “plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Jd. (citing Twombly, 550 U.S.

at 556). In ruling on a Rule 12(b)(6) motion, “courts must limit their inquiry to the facts stated in

the complaint and the documents either attached to or incorporated in the complaint.” Lovelace v.

Software Spectrum Inc., 78 F.3d 1015, 1017 (Sth Cir. 1996).

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B. Qualified Immunity

Public officials acting in the scope of their authority generally are shielded from civil

liability by the doctrine of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity protects “all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). As a result, courts will not deny

qualified immunity unless “existing precedent . . . placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Therefore, a plaintiff seeking to

overcome qualified immunity must show: “(1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Jd. at 735 (citation omitted). “When confronted with a qualified immunity defense at

the pleading stage, the plaintiff must plead ‘facts which, if proved, would defeat [the] claim of

immunity.’” Waller, 922 F.3d at 599 (quoting Westfall v. Luna, 903 F.3d 534, 542 (Sth Cir.

2018)).

I. DISCUSSION

A. Rule 12(b)(6) Waiver

As an initial matter, Mark contends that Defendants have waived the opportunity to move

for dismissal under Rule 12(b)(6) because the motion was filed after they filed an answer to his

previous, pro se complaint. Although Rule 12(h)(1) provides that a party can waive defenses

listed under Rules12(b)(2)-(5), Rule 12(b)(6) is not listed there. FED. R. Civ. P. 12(h)(2).

Indeed, Rule 12(h)(2) provides that “failure to state a claim upon which relief can be granted”

can be raised in a pleading allowed under Rule 7(a), by motion under Rule 12(c), or “at trial.”

FED. R. Civ. P. 12(h)(2). Accordingly, Defendants have not waived the defense of “failure to

state a claim upon which relief can be granted,” and their present motion is considered a motion

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for judgment on the pleadings under Rule 12(c). See FED. R. Civ. P. 12(c), (h); Jebaco, Inc., 587

F.3d at 317 n.5.

B. Evidence Attached to Motion to Dismiss

Mark also contends that the Court should only consider the pleadings, and not evidence

presented by Defendants, when considering the motion to dismiss. Defendants attach a letter

written by Revelle and Revelle’s timesheet to their motion to dismiss, arguing that these show

that he was not present at the Jail around the time of the riot and for several weeks thereafter and

that he notified IA regarding the allegations that Lee was dealing drugs and having sex with

inmates.

Generally, a court may not consider matters outside the pleadings without converting the

motion into a motion for summary judgment. See FED. R. Civ. P. 12(d). In reviewing the

Defendants’ motion on the pleadings, the Court cannot consider whether the evidence outside the

pleadings creates a genuine factual dispute. See Waller, 922 F.3d at 598 (citing Bosarge v. Miss.

Bureau of Narcotics, 796 F.3d 435, 439 (Sth Cir. 2015)). Accordingly, for the purposes of this

motion, Defendants’ evidence will not be considered.

C. Fifth Amendment Due Process Claims

Mark asserts due process claims under both the Fifth and Fourteenth Amendments. The

Fourteenth Amendment’s Due Process Clause applies to Mark’s claims as a pre-trial detainee in

a county jail with county actors, whereas Fifth Amendment due process claims apply only to

claims against federal actors. See Jones v. City of Jackson, 203 F.3d 875, 880 (Sth Cir. 2000).

Because Mark does not allege that any of the defendants are federal actors, Mark’s Fifth

Amendment due process claims are DISMISSED, and his due process claims will be analyzed

under the Fourteenth Amendment.

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D. Individual Capacity Claims against Revelle

Revelle contends that Mark has failed to state a claim against him in his individual

capacity. He also asserts qualified immunity. Mark alleges that Revelle violated his due process

rights by being deliberately indifferent to his right to reasonable safety when Revelle did not

reassign or remove Lee from the sixth floor even though Revelle knew that Lee was bringing

contraband onto the floor, knew that she was engaging in inappropriate relationships with

inmates, and knew that Mark had written a grievance against Lee that was jeopardizing her job

such that Mark was a target for retaliation.

“The constitutional rights of a pretrial detainee flow from the procedural and substantive

due process guarantees of the Fourteenth Amendment.” Olabisiomotosho v. City of Houston,

185 F.3d 521, 525 (Sth Cir. 1999) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). The Fifth

Circuit has applied the deliberate indifference standard set forth for Eighth Amendment claims in

Farmer v. Brennan, 511 U.S. 825, 837 (1994), to pretrial detainees who allege episodic acts or

omissions by jail employees. See Hare v. City of Corinth, Miss., 74 F.3d 633, 647-48 (Sth Cir.

1996) (en banc) (“We hold that the episodic act or omission of a state jail official does not

violate a pretrial detainee’s constitutional right to be secure in his basic human needs, such as

medical care and safety, unless the detainee demonstrates that the official acted or failed to act

with deliberate indifference to the detainee’s needs.”); see also Garza v. City of Donna, 922 F.3d

626, 635-36 (Sth Cir. 2019) (holding that the deliberate indifference inquiry does not require

proof of subjective intent to cause harm but instead that “the official knows of and disregards an

excessive risk to inmate safety”). To prevail on a claim for deliberate indifference, a plaintiff

must show that “the official knows of and disregards an excessive risk to inmate health or safety;

the official must both be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S.

at 837.

Although supervisory officials cannot be held liable for the actions of their subordinates

based on a theory of respondeat superior, a supervisor like Revelle may be held liable under

§ 1983 for a subordinate’s actions if there is an affirmative link between the subordinate’s

misconduct and supervisory inaction. Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539,

550 (Sth Cir. 1997). A supervisor, although not personally involved in unconstitutional conduct,

may be liable if: (1) he failed to train or supervise the officers involved in the unconstitutional

act; (2) there is a causal connection between the alleged failure to supervise or train and the

alleged violation of the plaintiff's rights; and (3) the failure to train or supervise constituted

deliberate indifference to the plaintiff's constitutional rights. Thompson v. Upshur County, 245

F.3d 447, 459 (Sth Cir. 2001).

Mark alleges that Revelle, as Lee’s direct supervisor, was specifically aware of Lee’s

activities, including drug smuggling and sex with inmates, but failed to take prompt action

against Lee that would have prevented Mark’s injuries and the violations of Mark’s

constitutional rights. Mark alleges further that Revelle had specific knowledge of inmate Silva’s

allegations that Lee had harassed him, but Revelle failed to remove Lee from duty on the sixth

floor. Mark alleges that Revelle was aware that Mark had filed a grievance against Lee and that

Lee had a reason to target Mark, but that Revelle took no action to prevent Lee from harming

Mark or other inmates and instead tried to convince Mark to withdraw the grievance (even

though he knew of Lee’s “shortcomings”? by that time, according to the pleadings). Mark

further alleges that Revelle was aware of, and acted with deliberate indifference to, the

2 Even Revelle and Hickman acknowledge that it is clear that Lee had “shortcomings” and was a wrongdoer. See

Doc. No. 72 at 24.

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substantial risk of serious harm posed by Lee and failed to restrain her from smuggling

contraband into the Jail, fraternizing with inmates, and threatening inmates on the 6th floor. At

the pleading stage, Mark has alleged sufficient facts to state a plausible claim against Revelle.

At the time of the events at issue, it was clearly established that deliberate indifference to

a detainee’s rights to reasonable safety violates the law. See Farmer, 511 U.S. at 842 (holding

that a plaintiff “need not show that a prison official acted or failed to act believing that harm

actually would befall an inmate; it is enough that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm”); Hare, 74 F.3d at 650. In conducting the

qualified immunity analysis, the Court considers the allegations against Revelle through the lens

of whether “the official’s conduct was objectively reasonable under clearly established law

existing at the time of the incident.” Bazan v. Hidalgo County, 246 F.3d 481, 490 (Sth Cir.

2001). At this pleading stage, where the Court accepts the facts as alleged in the pleadings as

true, the Court cannot conclude at this time that Revelle’s actions were objectively reasonable.

Therefore, Revelle’s assertion of qualified immunity at the pleading stage of the proceedings is

DENIED.

E. Official Capacity Claims

Mark sues Lee, Revelle, and Hickman in their official capacities (Counts 2, 6, & 7). A

suit against Harris County officials in their official capacities is, in all respects except name, a

suit against Harris County. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“As long as the

government entity receives notice and an opportunity to respond, an official-capacity suit is, in

all respects other than name, to be treated as a suit against the entity,” and not as a suit against

the official personally, “for the real party in interest is the entity.”). Defendants contend that the

official capacity claims should be dismissed as redundant of the claims against Harris County.

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As Mark points out, the official capacity claims are not redundant because he did not name

Harris County as a defendant in this case. Although the claims are treated as claims against

Harris County “in all respects other than name,” official capacity suits “‘generally represent only

another way of pleading an action against an entity of which an officer is an agent.’” Graham,

473 U.S. at 166 (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.

55(1978)).

To state a claim against a municipal official in their official capacity, a plaintiff must

plead facts to show that a policymaker promulgated a municipal policy-——which may include a

custom, practice, or failure to train or supervise—that was the moving force of the violation of

the plaintiff's constitutional rights. See Monell, 436 U.S. at 694 (holding that a local government

may only be sued when the “execution of a government’s policy or custom, whether made by its

lawmakers or those whose edicts or acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible under § 1983”); see also Littell v.

Houston Indep. Sch. Dist., 894 F.3d 616, 622-24 (Sth Cir. 2018) (discussing a “failure to train”

claim as established in City of Canton v. Harris, 489 U.S. 378, 386-92 (1989), and holding that

the plaintiff had alleged sufficient facts to state a plausible failure to train claim at the pleading

stage).

1. Claims against Lee and Revelle

Defendants argue that the official capacity claims against Lee and Revelle must be

dismissed because they are not policymakers. Whether a person is a policymaker is a matter of

state law. See McMillian v. Monroe County, 520 U.S. 781, 784-88 (1997). In Texas, “the

county sheriff is the county’s final policymaker in the area of law enforcement.” Bennett v.

Pippin, 74 F.3d 578, 586 (Sth Cir. 1996). Mark identifies Hickman as a policymaker, but there is

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no indication that either Revelle or Lee is a policymaker for Harris County. See McMillian, 520

US. at 783 (official capacity claim failed because defendant was not a policymaker for the

county for purposes of law enforcement). Accordingly, the official capacity claims against Lee

and Revelle are subject to dismissal because they are not policymakers for Harris County as a

matter of Texas law.

2. Claims against the Harris County Sheriff

Turning to the claims against Hickman in his official capacity (i.e., Harris County),?

Mark alleges that the failure to train or supervise Lee or the practice of tolerating guards’

misconduct caused the deprivation of Mark’s constitutional rights under the Fourteenth

Amendment for reasonable safety and under the First Amendment for freedom from retaliation

for filing a grievance, and that such failure to train or practice of tolerating guards’ misconduct

was maintained in deliberate indifference to Mark’s constitutional rights.

To establish municipal liability for failure to train or supervise, a plaintiff must show that:

“(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link

exists between the failure to train or supervise and the violation of the plaintiff's rights; and (3)

the failure to train or supervise amounts to deliberate indifference.” Mesa v. Prejean, 543 F.3d

264, 274 (Sth Cir. 2008) (internal quotation marks and citation omitted). Ordinarily, a plaintiff

must “demonstrate a pattern of violations” and show that the defendant’s actions were

“obviously likely to result in a constitutional violation.” Estate of Davis ex rel. McCully v. City

of N. Richland Hills, 406 F.3d 375, 381 (Sth Cir. 2005) (citations and internal quotation marks

omitted). However, “even absent proof of pattern, deliberate indifference can still be inferred if

the factfinder determines that the risk of constitutional violations was or should have been an

3 In that regard, the Court takes judicial notice that Sheriff Ed Gonzalez, and not Ronald Hickman, is the

current Harris County Sheriff. Under Federal Rule of Civil Procedure 25(d), Hickman’s successor is

“automatically substituted as a party.” FED. R. Clv. P. 25(d).

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‘obvious’ or ‘highly predictable consequence’ of the alleged training inadequacy.” Littell, 894

F.3d at 624 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997)).

Regarding the first element, Mark has stated sufficient facts to state a plausible claim that

there was a failure to supervise or train Lee, as discussed at length above regarding the claim

against Revelle.

Second, Mark alleges facts to show that there was a causal link between the failure to

supervise or the practice of tolerating guard misconduct and the violation of his constitutional

rights. Mark alleges that Harris County had a pervasive practice of failing to enforce policies

regarding inmate safety, contraband, and fraternization between detention officers and inmates,

and this caused a violation of his constitutional rights. In that regard, Mark alleges that other

inmates complained about Lee and her tactics of retaliation and intimidation, but that IA took

over a month to investigate the serious allegations against her and no one at the County removed

her from the sixth floor when the allegations regarding her crimes surfaced. In particular, Mark

alleges that before the riot occurred on September 16, 2015, which Lee allegedly orchestrated,

Harris County had initiated at least three IA investigations against Lee for (1) not properly

accounting for an inmate for an entire day and failing to account for the inmates in her pod; (2)

not properly restraining an inmate she was transporting, which caused injury to another guard;

and (3) dealing drugs and having inappropriate relationships with inmates on the sixth floor.

Mark also alleges that numerous officers and personnel knew that Lee was engaging in drug

deals and sexual relationships with inmates, and that Harris County officials were aware of Lee’s

obvious shortcomings for months, yet no one removed Lee from the sixth floor or supervised or

trained her in light of these serious allegations. Mark alleges that Harris County’s lack of

training or supervision, and/or practice of tolerating misconduct like Lee’s allowed Lee to use

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her inmate boyfriends to threaten and intimidate Mark in his cell and to orchestrate a riot where

Mark was injured along with several other inmates.

At the pleading stage, Mark alleges facts to support a plausible inference that there was a

causal connection between the failure to train or supervise Lee and the violation of Mark’s

constitutional rights. These facts also support a plausible inference that the risk of constitutional

violations was or should have been a highly predictable consequence of Harris County’s practice

of tolerating such gross misconduct and/or failing to supervise or train guards regarding the

dangers of introducing contraband and engaging in inappropriate relationships in the Jail in

deliberate indifference to Mark’s First and Fourteenth Amendment rights. Accordingly, the

motion to dismiss the official capacity claims against the Harris County Sheriff is DENIED.

IV. CONCLUSION AND ORDER

Based on the foregoing, the Court ORDERS as follows:

1. Defendants’ motion to dismiss (Doc. No. 72) is GRANTED in part, in that Mark’s

Fifth Amendment due process claims are DISMISSED, and such will be construed as

claims under the Fourteenth Amendment, and the official capacity claims against Lee

and Revelle are DISMISSED.

2. The motion is otherwise DENIED.

3. Sheriff Ed Gonzalez, the current Harris County Sheriff, is substituted for former

Sheriff Ronald Hickman pursuant to Federal Rule of Civil Procedure 25(d).

4, Mark’s motion to amend is GRANTED, insofar as he may, within 21 days of the date

of this Order, submit a Second Amended Complaint that substitutes current Sheriff

Ed Gonzalez in place of the Defendants he names in their official capacities for

Counts 2, 6, and 7, and cure any other deficiencies consistent with this Order.

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The Clerk of Court will send a copy of this Order to the parties of record.

SIGNED at Houston, Texas, this a 4 day of October 2019.

ANDREW S. HANEN

UNITED STATES DISTRICT JUDGE

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