Criswell v. Davis

UNITED STATES DISTRICT COURT May 26, 2022

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JOSHUA LEE CRISWELL and §

FRANK BROWN, §

§

Plaintiffs, §

§

vs. § CIVIL ACTION NO. H-20-3108

§

BOBBY LUMPKIN, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Joshua Lee Criswell and Frank Brown are inmates in the Texas Department of Criminal

Justice. They sued Lorie Davis, as former Executive Director of the TDCJ-Correctional

Institutions Division; Bobby Lumpkin, as current Executive Director of the TDCJ-CID; and TDCJ

Ellis Unit Warden Kelly Strong under 42 U.S.C. § 1983, alleging that the defendants were

deliberately indifferent to inmate health and safety during the early stages of the COVID-19

pandemic in 2020. (Docket Entry No. 1, pp. 3-5). The court dismissed Davis and Lumpkin from

the case, (Docket Entry No. 28), and ordered Strong to respond to the complaint. (Docket Entry

No. 29). Strong responded with a motion to dismiss. (Docket Entry No. 40). Having reviewed

the complaint, the motion, and all matters of record, the court grants Strong’s motion to dismiss

and dismisses the complaint with prejudice. The reasons for this ruling are explained below.

I. Background

Criswell and Brown filed a joint complaint in September 2020 challenging TDCJ’s

response to the COVID-19 pandemic. As to Strong, Criswell and Brown allege that between

January and May 2020, Strong failed to provide Ellis Unit inmates with adequate amounts of soap

and disinfectant, failed to provide inmates with proper personal protective equipment, “failed to

respect social distancing . . . in offender housing,” and failed to isolate inmates who tested positive

for the COVID-19 virus from those who tested negative, resulting in the spread of the virus

throughout the prison. (Docket Entry No. 1, pp. 4-5). Both Criswell and Brown tested positive

for the COVID-19 virus in May 2020, and they allege that they became infected due to Strong’s

inaction in the face of the pandemic. (Id. at 5). After filing multiple grievances with TDCJ, (Id.

at 7-16), Criswell and Brown filed this civil rights action. They sought both monetary damages

and injunctive relief. (Id. at 5).

Strong answered the complaint with a motion to dismiss. (Docket Entry No. 40). Neither

Criswell nor Brown have responded to Strong’s motion, and their time to do so has now expired.

II. Legal Standards

A. Motions to Dismiss

Strong moves to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure. A motion to dismiss under Rule 12(b)(1) is properly granted when the

plaintiff lacks standing or when the claims alleged are barred by a state’s sovereign immunity. See

High v. Karbhari, 774 F. App’x 180, 182 (5th Cir. 2019) (per curiam) (citing Little v. KPMG LLP,

575 F.3d 533, 540 (5th Cir. 2009), and Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th

Cir. 2005)). Because a Rule 12(b)(1) motion challenges the court’s jurisdiction, “[w]hen a Rule

12(b)(1) challenge is filed with other Rule 12 motions, the court should address the Rule 12(b)(1)

motion ‘before addressing any attack on the merits.’” D&G Holdings, L.L.C. v. Becerra, 22 F.4th

470, 474 (5th Cir. 2022) (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).

In resolving a motion under Rule 12(b)(1), the court may refer to affidavits and other documents

outside the pleadings. See Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)

(“It is well settled in this circuit that ‘[t]he district court . . . has the power to dismiss [pursuant to

Rule 12(b)(1)] on any one of three separate bases: (1) the complaint alone; (2) the complaint

supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.’” (quoting Voluntary Purchasing

Grps, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989))); Williamson v. Tucker, 645 F.2d 404,

412-13 (5th Cir. 1981).

A motion to dismiss under Rule 12(b)(6) may be granted when the plaintiff’s complaint

fails to state a claim upon which relief can be granted. A court reviewing a motion under Rule

12(b)(6) must “accept[] all well-pleaded facts as true, viewing them in the light most favorable to

the plaintiff.” Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 305 (5th Cir. 2020) (cleaned

up). “However, the plaintiff must plead specific facts, not mere conclusory allegations to state a

claim for relief that is facially plausible.” Id. (cleaned up). If the complaint does not set forth

“enough facts to state a claim to relief that is plausible on its face,” it must be dismissed. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up).

Criswell and Brown have attached their TDCJ grievance forms as exhibits to their

complaint. These exhibits are part of the complaint “for all purposes.” FED. R. CIV. P. 10(c). The

court may consider these exhibits for purposes of deciding a motion to dismiss under both Rules

12(b)(1) and 12(b)(6). See United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370,

375 (5th Cir. 2004).

B. Pro Se Pleadings

Because Criswell and Brown are representing themselves, the court construes their filings

liberally, subjecting them to “less stringent standards than formal pleadings drafted by lawyers[.]”

Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But even under this lenient standard,

self-represented litigants are still required to “abide by the rules that govern the federal courts.”

E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (quoting Frazier v. Wells Fargo Bank,

N.A., 541 F. App’x 419, 421 (5th Cir. 2013)). “Pro se litigants must properly plead sufficient facts

that, when liberally construed, state a plausible claim to relief, serve defendants, obey discovery

orders, present summary judgment evidence, file a notice of appeal, and brief arguments on

appeal.” Id. (citations omitted).

III. Analysis

A. Official Capacity Claims

1. Damages

To the extent that Criswell and Brown sue Strong in her official capacity for money

damages, their claims are barred under the doctrine of sovereign immunity. Sovereign immunity

bars actions against a state or state official unless Congress has abrogated such immunity or the

state has specifically waived its immunity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58,

66 (1989). Congress did not abrogate the states’ sovereign immunity when it enacted § 1983. Id.

And the State of Texas has not waived its sovereign immunity for purposes of § 1983 actions. See

Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (“It is up to the Legislature

to institute such a waiver, and to date it has not seen fit to do so.”); see also Putnam v. Iverson,

No. 14-13-00369-CV, 2014 WL 3955110, at *3 (Tex. App. ̶ Houston [14th Dist.] Aug. 14, 2014,

pet. denied) (the Texas Legislature has not waived sovereign immunity for any claim brought

under § 1983).

The fact that Criswell and Brown have sued a state employee, rather than the state itself,

does not change this analysis. When a government employee is sued in his or her official capacity,

the employing entity is the real party in interest for the suit. See Kentucky v. Graham, 473 U.S.

159, 165-66 (1985) (explaining that official-capacity suits “generally represent only another way

of pleading an action against an entity of which an officer is an agent” and are “treated as a suit

against the entity”) (citations omitted). Criswell and Brown’s claims for money damages against

Strong in her official capacity are construed as claims against the State of Texas. Because these

claims are barred by sovereign immunity, the court dismisses them with prejudice.

2. Injunctive Relief

a. Plaintiff Brown

To the extent that Brown sues Strong in her official capacity for an injunction to require

her to change the Ellis Unit policies on COVID-19 protective measures, his claim is moot. An

action becomes moot “when intervening circumstances render the court no longer capable of

providing meaningful relief to the plaintiff.” Ermuraki v. Renaud, 987 F.3d 384, 386 (5th Cir.

2021) (per curiam) (quoting Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413,

425 (5th Cir. 2013)). An inmate’s transfer to another unit makes his claims for injunctive relief

moot. See, e.g., Oliver v. Scott, 276 F.3d 736, 741 (5th Cir.2002); Cooper v. Sheriff, Lubbock

Cnty., Texas, 929 F.2d 1078, 1084 (5th Cir. 1991) (per curiam). But a transfer will not moot a

claim for injunctive relief if the inmate can show either a “demonstrated probability” or a

“reasonable expectation” that he will be transferred back to the original facility and subjected to

the allegedly unconstitutional actions. See Oliver, 276 F.3d at 741 (quoting Murphy v. Hunt, 455

U.S. 478, 482 (1982) (per curiam)); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (an

inmate’s transfer from a detention center to a state correctional institution mooted his Eighth

Amendment claims for declaratory and injunctive relief because any suggestion of a transfer back

to the detention center was too speculative to warrant relief); Wallace v. Texas Tech Univ., 80 F.3d

1042, 1047 n.3 (5th Cir. 1996) (“Jurisdiction over a plaintiff’s claims for future relief is appropriate

only if a reasonable likelihood exists that the plaintiff will again be subjected to the allegedly

unconstitutional actions.”).

Brown’s complaint alleges that he was harmed by Strong’s allegedly unconstitutional

actions while he was incarcerated on the Ellis Unit. But Brown has since been transferred to the

Hughes Unit and then to the Torres Unit. (Docket Entry Nos. 22, 26). Nothing in the record shows

a reasonable likelihood that he will be transferred back to the Ellis Unit. These facts make Brown’s

claim for injunctive relief against Strong moot, and the court dismisses this claim as moot.

b. Plaintiff Criswell

To the extent that Criswell seeks injunctive relief against Strong, his claim fails to meet the

requirements for such relief. “A party seeking a permanent injunction must show: (1) that it has

succeeded on the merits; (2) that a failure to grant the injunction will result in irreparable injury;

(3) that said injury outweighs any damage that the injunction will cause the opposing party; and

(4) that the injunction will not disserve the public interest.” Valentine v. Collier, 993 F.3d 270,

280 (5th Cir. 2021). In addition, “[a] permanent injunction is appropriate only if a defendant’s

past conduct gives rise to an inference that, in light of present circumstances, there is a reasonable

likelihood of future transgressions.” Id. And when a party is seeking injunctive relief from a state

officer acting in his or her official capacity, that party is limited to prospective relief intended to

redress ongoing conduct. See Williams o/b/o J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020)

(citing Ex parte Young, 209 U.S. 123 (1908)).

The Prison Litigation Reform Act also limits the availability of injunctive relief relating to

prison conditions. The PLRA prohibits the court from granting prospective injunctive relief

directed to prison conditions “unless the court finds that such relief is narrowly drawn, extends no

further than necessary to correct the violation of the Federal right, and is the least intrusive means

necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1). The court must

also “give substantial weight to any adverse impact on public safety or the operation of a criminal

justice system caused by the relief.” Id. The moving party has the burden to prove all of the

requirements for injunctive relief, including those of the PLRA, before such relief will be granted.

See Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 464 (5th Cir. 2003).

Review of the pleadings in this case shows there is no basis upon which to award Criswell

the injunction he seeks. Criswell seeks an injunction to require Strong to “house offenders at least

6 ft. apart; respect social distancing; pass out PPE, soap and disinfectant; properly disinfect the

facility; properly medically isolate offenders; implement policies to prevent the spread of COVID

19; pass out spray bottles; sell affordable concentrated disinfectant on commissary and spray

bottles; [and] properly screen for COVID 19.” (Docket Entry No. 1, p. 4). But Criswell does not

allege any facts to show that these measures are narrowly drawn, would be effective in controlling

the spread of the COVID-19 virus, and would be feasible in a prison setting. In addition, the court

notes that the Fifth Circuit has determined that TDCJ’s initial response to the COVID-19 pandemic

and the policies it adopted in the early months of the pandemic, while not perfect, were appropriate,

and these policies have since been revised multiple times in response to new information and

experience with the virus.1 See Valentine v. Collier, 993 F.3d 270, 283 (5th Cir. 2021). Criswell

does not show that TDCJ’s current policies regarding the COVID-19 virus are inadequate or that

Strong is failing or refusing to follow those policies. He does not therefore show that his requested

relief extends no further than necessary to correct the alleged violation.

1The most current version of TDCJ’s COVID-19 infection control policy, Number B-14.52, was

adopted January 26, 2022, and is available at

https://www.tdcj.texas.gov/divisions/cmhc/docs/cmhc_infection_control_policy_manual/B-14.52.pdf.

In light of these facts, Criswell’s pleadings do not allege facts showing that injunctive relief

is necessary to redress an ongoing violation or to prevent future violations or that prospective

injunctive relief is appropriate under the PLRA. Criswell’s claim for injunctive relief against

Strong in her official capacity is dismissed with prejudice under Rule 12(b)(6).

B. Individual Capacity Claims

1. Deliberate Indifference Claim

Both Criswell and Brown seek damages from Strong based on a claim that she was

deliberately indifferent to their serious medical needs, resulting in a violation of the Eighth

Amendment’s prohibition on cruel and unusual punishment. Deliberate indifference is a high

standard to meet. See Farmer v. Brennan, 511 U.S. 825 (1994). To prove deliberate indifference,

the 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

substantial risk of serious harm exists, and he must also draw the inference.” Valentine, 993 F.3d

at 281 (quoting Farmer, 511 U.S. at 837). “In evaluating a prison’s response [to a risk of harm],

‘deliberate indifference cannot be inferred from a negligent or even a grossly negligent response

to a substantial risk of serious harm.’” Id. (quoting Thompson v. Upshur County, Tex., 245 F.3d

447, 459 (5th Cir. 2001)). Instead, proof of deliberate indifference “requires a showing of a wanton

disregard for the prisoners’ safety or recklessness.” Id. (citing Gobert v. Caldwell, 463 F.3d 339,

346 (5th Cir. 2006)); see also Pierce v. Hearne Indep. Sch. Dist., 600 F. App’x 194, 198 (5th Cir.

2015) (“[D]eliberate indifference entails ‘conduct that reflects complete indifference to risk—

when the actor does not care whether the other person lives or dies, despite knowing that there is

a significant risk of death.’” (quoting Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991)

(cleaned up))).

Criswell and Brown allege that Strong was deliberately indifferent to the risks posed by

the COVID-19 pandemic. But in the early months of 2020, the risks of the COVID-19 virus were

poorly understood. The nature of those risks and the appropriate means to manage them were

uncertain, and these issues were particularly complicated in the prison context. But the Fifth

Circuit has recognized that TDCJ took timely and appropriate steps to try to address the risks posed

by the pandemic.

In February of 2020, TDCJ first began discussions with Dr. Lanette Linthicum,

Director of the Health Services Division for TDCJ, regarding a response to COVID-

19. Also in February, the Correctional Managed Health Care Committee

(“CMHCC”), composed of representatives from TDCJ, Texas Tech, and University

of Texas Medical Branch (“UTMB”), began formulating Policy B-14.52—a

comprehensive policy to manage COVID-19 in TDCJ facilities. The policy, which

largely tracked the CDC guidance for detention centers, was adopted on March 20,

2020. The policy has been frequently updated and revised. In March, testing

became available for symptomatic inmates. On May 12, 2020, TDCJ began to roll

out “strike-team testing” for the Pack Unit and three other similarly situated prison

facilities. Strike-team testing is TDCJ’s mass testing protocol for all inmates that

is included in the CDC’s recommendations for mass testing for COVID-19 in

nursing homes. Policy B-14.52 also instructs on quarantining and isolation both

for inmates who test positive for the virus and those suspected of being infected

with it.

Valentine, 993 F.3d at 278-79. In light of these facts, the Fifth Circuit concluded that TDCJ’s

response to the pandemic did not rise to the level required to show deliberate indifference. Id. at

283-84.

In her motion, Strong does not dispute that the COVID-19 virus presents a substantial risk

of harm to inmates, nor does she dispute that she subjectively knew of the general risks presented

by the virus. But she contends that her response to that risk was objectively reasonable. Neither

Criswell nor Brown allege any facts to show that Strong failed to comply with the TDCJ policies

adopted to address the COVID-19 pandemic or that she otherwise acted with deliberate disregard

to their health and safety. To the extent that they contend that TDCJ’s policies were inadequate to

deal with risks posed by the COVID-19 virus, general complaints that policies were inadequate to

prevent harm—even if true—are not sufficient to establish a deliberate indifference claim. See,

e.g., Brumfield v. Hollins, 551 F.3d 322, 328 (5th Cir. 2008) (while jail’s policies “lacked the

specific directives Brumfield would have preferred to have been in place, policies nonetheless

existed”). The fact that Criswell and Brown contracted the COVID-19 virus despite these policies

does not, by itself, establish deliberate indifference. Criswell and Brown have failed to state a

claim for deliberate indifference, and their claim on this basis is dismissed with prejudice for

failure to state a claim.

2. Supervisory Liability Claim

Alternatively, Criswell and Brown appear to seek to hold Strong liable as a supervisor for

the failure of certain subordinate prison officers to comply with TDCJ’s COVID-19 policies. But

under § 1983, supervisors cannot be held liable for the actions of others, including their

subordinates. Personal involvement, not merely a supervisory role, is required. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Jones v. Lowndes County, Miss., 678 F.3d 344,

349 (5th Cir. 2012). And while a supervisor may be personally liable for a failure to properly train

employees, see, e.g., Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998), Criswell and

Brown do not allege any facts supporting a claim against Strong for a failure to train. Their claims

based on supervisory liability are dismissed with prejudice for failure to state a claim.

C. Qualified Immunity

Even if Criswell and Brown had alleged a viable claim that Strong violated their

constitutional rights, the pleadings show that Strong is entitled to qualified immunity. Qualified

immunity protects government officials from civil liability in their individual capacities to the

extent that their conduct does not violate clearly established statutory or constitutional rights. See

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)); see also Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020), cert. denied, 141 S. Ct.

1058 (2021). 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.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); see also Roque v.

Harvel, 993 F.3d 325, 331 (5th Cir. 2021). Courts are free to decide which of the two elements to

address first. Ashcroft, 563 U.S. at 735. “The plaintiff bears the burden of negating qualified

immunity, . . . but all inferences are drawn in his favor.” Brown v. Callahan, 623 F.3d 249, 253

(5th Cir. 2010) (cleaned up).

To succeed on the second element of the qualified immunity analysis, the plaintiff must

show that “the state of the law at the time of the incident provided fair warning to the defendants

that their alleged [conduct] was unconstitutional.” Tolan v. Cotton, 572 U.S. 650, 656 (2014)

(cleaned up). The Fifth Circuit has explained that this means that “pre-existing law must dictate,

that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every

like-situated, reasonable government agent that what the defendant is doing violates federal law in

the circumstances.” Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997) (cleaned up).

In the early months of 2020, information about the spread of the COVID-19 virus and how

to address it in a crowded prison was new, uncertain, and evolving. TDCJ turned to, and relied

on, the Correctional Managed Health Care Committee—as “the agency with healthcare expertise”

and charged with “developing policies for all aspects of healthcare in correctional facilities”—to

develop policies to respond to the COVID-19 pandemic. Valentine, 993 F.3d at 283. The legal

obligation of an individual TDCJ warden to take steps to protect inmates against the COVID-19

virus separate and apart from, or in addition to, the measures developed by CMHCC and adopted

by TDCI was far from clearly understood in March 2020, and the ability to provide protection was

limited. Criswell and Brown seem to allege that Strong had obligations in addition to complying

with TDCJ’s policies, but they point to no clearly established law so holding. And because the

facts do not show that “every like-situated, reasonable government agent” would know that what

Strong was doing violated federal law under the circumstances of an unprecedented pandemic, the

law governing Strong’s conduct was not clearly established. Strong is entitled to qualified

immunity, and the claims against her are dismissed with prejudice.

IV. Conclusion

Warden Kelly Strong’s motion to dismiss, (Docket Entry No. 40), is granted, and the

complaint (Docket Entry No. 1), is dismissed with prejudice. Final judgment is separately entered.

SIGNED on May 26, 2022, at Houston, Texas.

LW CnerTe

Lee H. Rosenthal

Chief United States District Judge

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