Grant v. Richardson

Southern District of Texas

ENTERED

August 30, 2023

IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DANUAL GRANT, §

Plaintiff,

Vv. CIVIL ACTION NO, H-20-2685

JEFFERY RICHARDSON,

Defendant.

MEMORANDUM AND ORDER

Danual Grant is an inmate in the Texas Department of Criminal Justice (“TDCJ”).

Defendant Jeffery Richardson was, at all times relevant to this case, the Senior Warden of the

TDCJ’s Estelle Unit. Grant filed suit under 42 U.S.C. § 1983 alleging that Richardson was

deliberately indifferent to inmate safety. He seeks monetary and injunctive relief.

Richardson has now moved to dismiss. Based on the pleadings, the motion, Grant’s

response, and the applicable law, the defendant’s motion is granted in part for the reasons set out

below.

L Background

At all times relevant to this case, plaintiff Danual Grant was housed in the Estelle Unit of

the TDCJ. Grant alleges that, in 2020, Estelle Unit medical personnel administered insulin

injections to diabetic inmates outside the bars in the Estelle Unit, exposing the inmates to

Covid-19. He further alleges inmates were given inadequate cleaning supplies to minimize the

spread of Covid, and that inmates who tested positive were housed in cell blocks with uninfected

inmates. Defendant Richardson now moves to dismiss.

I. Standard of Review

A. Rule 12(b)(1)

A federal court must dismiss a case for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1) when the court lacks the statutory or constitutional power to

adjudicate the plaintiffs claims. Home Builders Assoc' of Miss., Inc., v. City of Madison, 143

F.3d 1006, 1010 (Sth Cir.1998). In resolving a motion under Rule 12(b)(1), a court may refer to

evidence outside the pleadings. Espinoza v. Mo. Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (Sth

Cir.1985). When the jurisdictional issue is of a factual nature rather than facial, plaintiff must

establish subject matter jurisdiction by a preponderance of the evidence. Irwin v. Veterans

Admin., 874 F.2d 1092, 1096 (Sth Cir.1989),

B. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6), the complaint is liberally construed

in favor of the plaintiff, and all well-pleaded facts are taken as true. Campbell v. Wells Fargo

Bank, 781 F.2d 440, 442 (Sth Cir.1986).

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. A claim has facial plausibility 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) (internal quotation marks and citations omitted).

Ill. Analysis

The defendant argues that he is immune from suit for damages in his official capacity and

that he did not violate Grant’s rights.

A. Eleventh Amendment Immunity

“[I]n the absence of consent a suit in which the State or one of its agencies or departments

is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A suit for damages against a state official in his

official capacity is not a suit against the individual, but against the state. Hafer v. Melo, 502

U.S. 21, 25 (1991), Because Richardson is a state official, this Court lacks subject matter

jurisdiction over Grant’s claims for money damages against him in his official capacity.

B. The Claims for Injunctive Relief

Grant also seeks an injunction requiring the defendant to comply with CDC guidelines

for managing Covid. Ex Parte Young, 209 U.S. 123 (1908) allows for prospective injunctive

relief against state officials in their official capacities. “In determining whether the doctrine of

Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a

straightforward inquiry into whether the complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv.

Comm'n of Maryland, 535 U.S. 635, 645 (2002).

Grant’s complaint alleges inadequate protection against Covid in the early days of the

pandemic. Both the Covid virus and our understanding of how best to prevent its transmission

have evolved since then, and Grant pleads no facts showing that the defendant continues to

respond inadequately to Covid. He therefore fails to demonstrate any need for prospective

relief, and his claim for injunctive relief is dismissed.

C. Deliberate Indifference

Grant contends that the defendant violated his Eighth Amendment rights by failing to

protect him from Covid-19.

[A] prison official violates the Eighth Amendment only when two

requirements are met. First, the deprivation alleged must be,

objectively, sufficiently serious, ... a prison official's act or

omission must result in the denial of the minimal civilized measure

of life's necessities. For a claim (like the one here) based on a

failure to prevent harm, the inmate must show that he is

incarcerated under conditions posing a substantial risk of serious

harm.

Farmer yv. Brennan, 511 U.S. 825, 834 (1994)(internal quotation marks and citations omitted).

The official must also be deliberately indifferent to the risk of serious harm. “Deliberate

indifference” is more than mere negligence, but “something less than acts or omissions for the

very purpose of causing harm or with knowledge that harm will result.” Jd. at 835. Rather,

deliberate indifference requires that the defendant be subjectively aware of a substantial risk of

serious harm to the inmate and recklessly disregard that risk. Jd. at 829, 836.

Grant’s claim that the defendant was deliberately indifferent by allowing medical

personnel to administer insulin to diabetic inmates outside the bars in the cell block fails. The

defendant is the Senior Warden, not a medical provider, and Grant makes no showing that the

defendant was aware of the procedures used by the medical providers or that those procedures

may have placed inmates at risk.

Grant also complains that inmates were not given enough soap and bleach to sufficiently

clean their living areas. The Fifth Circuit held that TDCJ Covid policy, including cleaning

policy, met constitutional standards. See Valentine v. Collier, 978 F.3d 154, 163-64 (5" Cir.

2020). Grant does not allege that the cleaning supplies provided to inmates violated the TDCJ

policy upheld in Valentine.

Grant also alleges, however, that the defendant knowingly allowed Covid-positive

inmates to be housed with uninfected inmates. This does not appear to be consistent with the

policy upheld in Valentine. See id. at 163 (noting that inmates who tested positive were placed

in isolation and inmates who transferred into the unit were quarantined for 14 days).

Richardson does not directly respond to this claim in his motion to dismiss. There is therefore

no basis for dismissing this claim at this time.

D. Qualified Immunity

Richardson argues that he is qualifiedly immune from Grant’s claims. “The doctrine of

qualified immunity shields public officials . . . from damages actions unless their conduct was

unreasonable in light of clearly established law.” Elder v. Holloway, 510 U.S. 510, 512 (1994).

The Fifth Circuit has held that, to overcome qualified immunity, “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 y. Smith, 117 F.3d 866, 882 (5 Cir. 1997) (internal quotation

marks and citation omitted).

As discussed above, all of Grant’s claims except his deliberate indifference claim

regarding the housing of Covid-positive inmates with uninfected inmates are subject to dismissal

either on the merits or for lack of subject matter jurisdiction. There is no need to determine the

issue of qualified immunity on those claims.

On the sole remaining claim, Richardson is not entitled to qualified immunity. The

constitutional duty of prison officials to protect inmates from serious harm of which they have

knowledge is well established. By the time of the events giving rise to this lawsuit, it was

widely known that Covid was spread through airborne transmission. This fact is reflected in the

TDCJ policy expressly upheld in Valentine and cited by Richardson, which required the use of

cloth masks. Accepting Grant’s allegations as true, as this Court must on a motion to dismiss,

the Estelle Unit moved Covid-positive inmates into cell blocks with uninfected inmates,

Richardson was made aware that this was happening through filed grievances, and Richardson

did nothing to stop the practice. These allegations, if proven, could show that Richardson was

deliberately indifferent to the risk that infected inmates would spread Covid to uninfected

inmates. Richardson does not show that he is entitled to qualified immunity on this claim.

IV. Conclusion

For the foregoing reasons, the defendant’s motion to dismiss (Docket Entry No. 42) is

GRANTED as to the claims it specifically contests. Grant’s claims for damages against the

defendant in his official capacity and Grant’s claims for injunctive relief are DISMISSED

WITHOUT PREJUDICE for lack of subject matter jurisdiction. All other claims except

Grant’s Eighth Amendment claim arising out of the housing of Covid-positive inmates with

uninfected inmates are DISMISSED WITH PREJUDICE. The Court will conduct further

proceedings on the remaining claim.

SIGNED at Houston, Texas on August 28, 2023

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UNITED STATES DISTRICT FUDGE