The opinion
USNOIUTETDH ESRTNA TDEISS TDRIISCTTR IOCFT T CEOXUARST July 13, 2023
CORPUS CHRISTI DIVISION Nathan Ochsner, Clerk
RICHARD SCOTT SHAFER, §
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Plaintiff, §
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VS. § CIVIL ACTION NO. 2:22-CV-00049
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JERRY SANCHEZ, et al., §
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Defendants. §
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
AS SUPPLEMENTED ON PENDING MOTIONS TO DISMISS
Pending before the Court are Defendants’ motions to dismiss Plaintiff’s claims in
whole or in part. D.E. 62, 63, 64, 65. On May 5, 2023, United States Magistrate Judge
Julie K. Hampton issued a Memorandum and Recommendation on Pending Motions to
Dismiss (M&R, D.E. 97), recommending dismissal of some, but not all, claims. Plaintiff
Shafer timely filed his objections (D.E. 100) on May 17, 2023. Defendant Sanchez filed
his objections (D.E. 103) on May 19, 2023. Plaintiff then responded to Defendant
Sanchez’s objections. D.E. 104. The Court addresses each motion and its respective
objection(s) in turn.
A. Defendants Sanchez and Johnson’s Motion to Dismiss Pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).1 D.E. 62.
Damages. There were no objections to the dismissal without prejudice of the claims
for monetary damages against these Defendants in their official capacities pursuant to the
1 Plaintiff objects to a clerical error in the recitation of the facts related to Defendant Sanchez. D.E. 100, p. 3. In
particular, the M&R recites that “Warden Sanchez did not receive a response to this letter, and no corrective action
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Eleventh Amendment. However, both Plaintiff and Defendant Sanchez objected to the
recommended disposition of the remaining claims addressed in this motion.
Defendant Sanchez in his Official Capacity. The M&R recommends denial of
the motion in part and retention of the official capacity claims against Defendant Sanchez.
Defendant Sanchez objects, arguing that the Magistrate Judge applied the wrong standard
and that the allegations do not support the findings necessary under the correct standard.
D.E. 103, p. 4 (citing Valentine v. Collier, 993 F.3d 270, 281 (5th Cir. 2021)). The M&R
correctly recites the Valentine standard for the official capacity claims as addressing
whether Defendant Sanchez (1) had knowledge of the complaint and (2) recklessly failed
to respond. D.E. 97, pp. 23-24. The M&R then states that Shafer’s allegations regarding
his informal letters to Defendant Sanchez were sufficient to put him on notice of the claims
of excessive heat and pest infestations, to which Defendant Sanchez offered no response.
First, Defendant Sanchez argues that the Valentine test does not ask whether he was
aware of the heat and pest conditions, but whether he was aware of the unconstitutional
acts of his staff in that regard. D.E. 103, pp. 3-4. But Defendant Sanchez’s own objections
recite that Plaintiff’s letters described the failure of the staff to provide relief from the heat
and pests:
Here, Shafer alleges he, “wrote the [u]nit [w]arden about the
issue with officers not following the rules set out in AD-10.64,
which are the [h]eat-mitigation measures,” and, “filed a
complaint, by [i]nmate [r]equest form, advising Warden
Sanchez of the terrible infestations of rats, cockroaches and
was taken . . . .” D.E. 97, p. 22. The Court notes that it was Plaintiff, not Warden Sanchez, who did not receive a
response. The correction of this clerical error does not affect the analysis.
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pwoeirsen,o “inuer v[esri cre] sparoancdneidd st o[ asincd] nion ctohrer ePctliavine taifcft’iso nc welal,s” tawkheinc.h”
D.E. 103, p. 4. This adequately alleges that Plaintiff complained of the unconstitutional
failure to act of prison staff members in response to unsafe conditions.
Second, Defendant Sanchez complains that it is not the content of the letters, but the
fact that the notice was allegedly provided only by informal letters and request forms,
which are insufficient. D.E. 103, p. 4 (citing Johnson v. Johnson, 385 F.3d 503, 526 (5th
Cir. 2004)). But that is not exactly what the Johnson opinion stated. In full context, the
court wrote:
Like all prison officials, these supervisory defendants have a
duty to take reasonable measures to protect inmates. Yet given
the size of the operation that they oversee, they cannot be
expected to intervene personally in response to every inmate
letter they receive. The record in this case shows that they
responded to Johnson's complaints by referring the matter for
further investigation or taking similar administrative steps.
This was a reasonable discharge of their duty to protect the
inmates in their care.
Id. (citation omitted; emphasis added). According to Plaintiff’s allegations, Defendant
Sanchez did nothing in response to the notice he was given. While Sanchez was not
required to personally intervene, he was required to do something to either determine that
no constitutional violation was occurring or take reasonable steps, through delegation or
otherwise, to address it. Johnson does not stand for the proposition that wardens can
lawfully ignore letters and requests.
The allegations are therefore adequate to state a claim under the Valentine test for
Warden Sanchez’s deliberate indifference in his official capacity. For that reason, his
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objections are OVERRULED. The Court supplements the M&R’s analysis, above, to
more completely address the Valentine test under the facts alleged here.
Defendants Sanchez and Johnson in their Individual Capacities. Plaintiff states
a number of objections to the recommended dismissal of these claims.
First, Plaintiff asserts that both Defendants were personally involved in
unconstitutional conduct. D.E. 100, pp. 2, 3-4. In this regard, he does not claim that they
personally denied him respite care from the heat or that they personally created the pest
infestation or personally breached a duty to mitigate it. Rather, he complains of Defendant
Sanchez’s failure to intervene after others violated his constitutional rights and Defendant
Johnson’s failure to escalate his grievances. Because, as the M&R sets out, individual
liability must be based on personal actions that violate the constitution and because
Plaintiff’s constitutional complaints address the heat respite and pest issues, his personal
involvement allegations are not consistent with his legal theory. The objection is
OVERRULED.
Second, Plaintiff objects because Defendant Sanchez was notified of his complaints.
D.E. 100, p. 2. While notification may trigger a duty to act in an official capacity (as
addressed above), the law is clear that individual capacity claims cannot be based on
vicarious liability or respondeat superior. See M&R, D.E. 97, p. 19 (citing cases). Thus,
notice of another party’s constitutional violation does not support an individual capacity
claim against another. The objection is OVERRULED.
Third, Plaintiff objects, claiming that Defendant Sanchez failed to train or supervise
the officers who denied him respite care after he was notified of the problem. D.E. 100, p.
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2. This argument fails to address deliberate indifference in an individual capacity and the
Court is not dismissing the claim against Defendant Sanchez in his official capacity.
Regardless,
“for a supervisor to be liable for failure to train, the focus must
be on the adequacy of the training program in relation to the
tasks the particular officers must perform.” Roberts v. City of
Shreveport, 397 F.3d 287, 293 (5th Cir.2005) (quotations and
citation omitted). Moreover, “for liability to attach based on an
‘inadequate training’ claim, a plaintiff must allege with
specificity how a particular training program is defective.” Id.
Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).
Plaintiff has not included any legal or factual allegations in his amended complaint
that are necessary for a claim for failure to train or supervise. D.E. 56. To the extent that
the objection is directed against Defendant Sanchez in his individual capacity, it fails to
properly allege actionable deliberate indifference. Moreover, the allegations are factually
insufficient regarding any defect in the training program. The objection is OVERRULED.
Fourth, Plaintiff argues that the Magistrate Judge erred in stating that Plaintiff has
no liberty interest in the grievance process to support a constitutional claim. D.E. 100, p.
3. He claims that the Prison Litigation Reform Act changed the law in this regard by
imposing a requirement to exhaust administrative remedies before filing suit. This
objection fails to address the multiple cases cited by the Magistrate Judge in her analysis.
It is further contrary to the law.
“While exhaustion of the grievance process is a necessary prerequisite to raising a
claim in federal court, [the inmate] has no protected liberty interest in the grievance process
itself.” Bell v. Avila, No. 4:11-CV-4238, 2013 WL 11730661, at *3 (S.D. Tex. June 25,
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2013). And the objection is conclusory, which is not permitted. Fed. R. Civ. P. 72(b)(2);
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). The objection is OVERRULED.
Fifth, Plaintiff appears to argue that qualified immunity does not apply because the
duty to provide respite care from the heat is “clearly established.” D.E. 100, p. 4. While
he states this proposition with respect to all of the Defendants, the only ones to whom the
Magistrate Judge applied qualified immunity were Defendants Sanchez and Johnson. See
D.E. 97, pp. 25-27. The basis for granting the defense was that Plaintiff had failed to
establish that these Defendants had violated his constitutional rights. Plaintiff’s conclusory
assertion that he had a right to respite care does not address his failure to show that these
Defendants violated that right. Consequently, the objection is inadequate to address the
liability theories in the case. It is OVERRULED.
B. Defendants Montoya and Garner’s Partial Motion to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1).2 D.E. 63
There are no objections to the M&R’s recommendation to grant this motion and
dismiss without prejudice Plaintiff’s requests for monetary damages against Defendants
Montoya and Garner in their official capacities pursuant to the jurisdictional limits imposed
on federal courts by the Eleventh Amendment to the United States Constitution. The
recommended disposition will be adopted.
2 Plaintiff Shafer contends that Defendants Montoya and Nino engaged in criminal conduct unrelated to the
allegations in this case. D.E. 100, p. 5. His character complaints are not relevant to the M&R’s analysis and are
disregarded.
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C. DPuefresnudaannt tt oL Fuemdpekrainl ’Rs uMleo otifo Cn itvoi lD Pirsomciesds u re 12(b)(6). D.E. 64.
Plaintiff’s objections include a reference to Lumpkin’s personal involvement in the
facts that provide the basis for the claims against him. D.E. 100, p. 1. However, the Court
does not construe this reference as an objection because the issue is moot. The M&R
recommends that the Court deny this motion, preserving the claims for declaratory and
injunctive relief based on Defendant Lumpkin’s alleged deliberate indifference and
personal involvement.
To the extent that the M&R recommends that the Court sua sponte dismiss any
claims against Defendant Lumpkin in his official capacity pursuant to the Eleventh
Amendment limitation on the Court’s jurisdiction, no objections were filed. Consequently,
the Court will adopt these recommended claim dispositions as to Defendant Lumpkin.
D. Defendants Gamez, Reyes, Nino’s Partial Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(1). D.E. 65.
Construed liberally, Plaintiff’s only objection to the recommended grant of this
motion is that Defendants Reyes and Nino had “no authority to deny respite” from the heat.
D.E. 100, p. 4. In other words, they could be ordered to provide respite. This appears to
controvert the M&R’s recommended holding that Plaintiff did not have standing because
these Defendants could not provide the relief he requested. However, Plaintiff’s second
amended complaint seeks only two types of injunctive relief: the increase of pest control3
3 While Plaintiff mentions that he believes Defendant Nino had “authority to order an emergency pest [s]praying to
the Plaintiff's cell and pipechase,” he acknowledges that the only claim he stated against Nino was related to respite
from heat. D.E. 100, p. 4. See also, D.E. 56 (making no reference to Nino knowing about or failing to exercise any
authority to address pest infestations).
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and the installation of air-conditioning units. D.E. 56, p. 10. Therefore, the objection does
not address the relief requested in the complaint and is ineffective to demonstrate standing.
The objection is OVERRULED. The Court will adopt the recommended disposition of
this motion.
E. Sua Sponte Dismissal of Unknown Officer
The Magistrate Judge recommends dismissal without prejudice of all claims against
the defendant listed as “Unknown McConnell Unit Officer.” There are no objections to
this recommendation and it will be adopted.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as the parties’
objections, and all other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation
to which objections were specifically directed, the Court OVERRULES each of the
objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge,
as supplemented. Accordingly, the Court:
• GRANTS IN PART and DENIES IN PART the Motion to Dismiss filed by
Warden Sanchez and Johnson (D.E. 62). This motion is GRANTED to the
extent that:
o Plaintiff’s deliberate indifference claims against Warden Sanchez in his
individual capacity are DISMISSED WITH PREJUDICE as frivolous
and/or for failure to state a claim for relief;
o Plaintiff’s deliberate indifference claims against Johnson in her
individual and official capacities are DISMISSED WITH PREJUDICE
as frivolous and/or for failure to state a claim for relief; and
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o Warden Sanchez and Johnson are entitled to qualified immunity with
respect to Plaintiff's deliberate indifference claims against them in their
individual capacities.
The motion is further DENIED insofar as the Court RETAINS Plaintiff's
deliberate indifference claim against Warden Sanchez in his official capacity for
injunctive relief.
e GRANTS the Partial Motion to Dismiss filed by Montoya and Garner (D.E. 63)
and Plaintiff's claims for money damages against Montoya and Garner in their
official capacities are DISMISSED WITHOUT PREJUDICE as barred by the
Eleventh Amendment.
e DENIES Director Lumpkin’s Motion to Dismiss (D.E. 64) and RETAINS
Plaintiffs deliberate indifference claim against Director Lumpkin in his official
capacity for injunctive relief.
e Pursuant to § 1915(e)(2)(B), DISMISSES WITHOUT PREJUDICE
Plaintiff's claims seeking punitive damages against Director Lumpkin in his
official capacity as barred by the Eleventh Amendment.
e GRANTS the Partial Motion to Dismiss filed by Gamez, Reyes, and Nino (D.E.
65) and
o Plaintiffs claims for money damages against Gamez, Reyes, and Nino in
their official capacities are DISMISSED WITHOUT PREJUDICE as
barred by the Eleventh Amendment; and
o Plaintiffs claims seeking injunctive relief against Gamez, Reyes, and
Nino are DISMISSED WITHOUT PREJUDICE for lack of standing.
e DISMISSES WITHOUT PREJUDICE the defendant listed as Unknown
McConnell Unit Officer.
ORDERED on July 13, 2023.
ipl GONZAIGS RAMOS
UNITED STATES DISTRICT JUDGE
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