Rivens-Baker Jr v. Riley

. -Southem District of Texas

ENTERED

September 19, 202:

Nathan Ochsner, Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DWAYNE RIVENS-BAKER, JR., §

(TDCJ #02064290), § .

Plaintiff, § .

□ □ § . □

Vs. § CIVIL ACTION NO. H-22-2462

§

J. RILEY, et al. . § .

§

- Defendants. § .

8

MEMORANDUM OPINION AND ORDER □

Dwayne Rivens-Baker, Jr., (TDCI #02064290), proceeding pro se and in

forma pauperis, filed an amended Prisoner’s Civil Rights Complaint under 42

U.S.C. § 1983, alleging that TDCI officials at the Wayne Scott Unit used excessive

force against him and then were deliberately indifferent to his injuries. (Dkt. 11).

After.screening under 28 U.S.C. § 1915A(b), the Court ordered an answer from

defendants Warden Jerry Sanchez, Sergeant Latoya Bradley, Corrections Officer

Dayo Fasola, Corrections Officer Emezie Onyeahialam, .Corrections Officer

Michael Onwusa, and Nurse Bintaben Shah. (Dkt. 30). The defendants filed their _

answers, (Dkts. 34, 44), and then filed a joint motion for summary judgment with

numerous exhibits. (Dkt. 53). Rivens-Baker filed a timely response to the motion,

(Dkt. 64), and the defendants filed a reply. (Dkt. 69). Having reviewed the motion,

the response and reply, the summary judgment evidence, all matters of record, and

the applicable law, the Court grants the defendants’ motion and dismisses Rivens-

Baker’s action for the reasons explained below.

I. BACKGROUND

In August 2022, Rivens-Baker filed an amended complaint under § 1983

based on events that occurred on May 13,2021, when he was incarcerated at TDCJ’s

Jester IV Unit. (Dit. 11). In his amended complaint, Rivens-Baker alleges that

Latoya Bradley and two unknown detention officers choked and beat him while he

was handcuffed and not resisting, (Id. at 4). He alleges that Bradley also sprayed a

chemical agent on his genital area during the assault. (/d.). Rivens-Baker alleges

that Nurse Shah failed to document his injuries, refused to treat him, and instead

ordered that he be placed in a seclusion cell without any medical treatment. (Id.).

Rivens-Baker alleges that Warden Sanchez failed to train his staff to comply with

TDCI’s policies and, despite knowing of the incident, failed to investigate and

properly report it. (id.). Rivens-Baker seeks a declaration that each of the

defendants violated his rights under the Eighth Amendment, an award of money

damages. (Id.). □

Rivens-Baker provided additional facts in a supplement to his amended

complaint. (Dkt. 12). There, he alleges that on May 13, he was being escorted to a

cell after a shower when he asked to speak with a PREA officer about an earlier

event. (/d. at 3). The officers escorting Rivens-Baker refused to allow him to speak

with a PREA officer at that time, so he “took a knee” and asked to speak with a

higher-ranking officer. (/d.). Bradley, as the sergeant on the floor, responded to the

scene, but she also refused to contact the PREA officer at that time. (Id.). The

officers then started “to forcefully drag” Rivens-Baker toward his cell. (Id.).

Rivens-Baker denies that he made any threatening gestures or actions toward the

officers. (Ud). □

According to Rivens-Baker, as the. officers dragged him toward his cell, they □

shoved him to the floor, where he hit his head. (/d. at 4). While Rivens-Baker was

on the floor, Bradley choked him while the other officers hit his feet and ankles. □

(Id.). Bradley then tore off Rivens-Baker’s gown, levine him naked on the floor,

and sprayed a chemical agent directly on his genitals, as well as on his ear and face. ©

(Id.). The officers then took Rivens-Baker to a seclusion cell. (Jd. at 4-5). Later

investigation determined that the detention officers involved in the incident in

addition to Bradley were Fasola, Onyeahialam, and Onwusa. (Dkts. 24, 25).

Once Rivens-Baker was inside the seclusion cell, Nurse Shah arrived and

spoke with him through a window in the cell door, but she refused to examine him

or treat him. (Dit. 12, p. 5). Rivens-Baker alleges that he was in extreme pain from

the chemical agent, but he was not offered any. medical care. (/d.). Instead, he was

left in the seclusion cell, where he was denied medical care, denied the right to go to

the bathroom, and denied food for more than 24 hours. (/d.). Rivens-Baker.alleges □

that Warden Sanchez knew of these events, but he did nothing to investigate what

had occurred, nor did he make proper reports of what happened. (/d.). _

Rivens-Baker alleges that Bradley and the other detention officers used

excessive force against him and that Bradley sexually assaulted him with the

chemical agent. (/d at 6). He alleges that Nurse Shah displayed deliberate

indifference by refusing to examine him and treat him after the excessive force

occurred. (/d.). And he alleges that Warden Sanchez displayed deliberate

indifference by failing to take disciplinary action against the officers, failing to

respond to the sexual assault claim, and failing to investigate the excessive force

complaint. (/d.). He also alleges that Warden Sanchez failed to properly train staff

and failed to keep inmates safe from assaults by staff (id.).

The Court ordered Bradley, Fasola, Onyeahialam, Onwusa, Shah, and .

Sanchez to answer the complaint. (Dkt. 30). The defendants answered the

complaint, (Dkts. 34, 44), and then filed a joint motion for summary judgment. (DKt.

53). The motion for summary judgment and summary judgment evidence contradict

portions of Rivens-Baker’s account of the incident. (Dkt. 53-3). The use-of-force

□

report states that as Rivens-Baker was being escorted to his cell after a shower, he

became upset and then started making movements and sounds as ifhe intendedto

spit on the officers. (/d. at 8). The officers took Rivens-Baker to the ground and

tried to secure him in leg ene but he resisted by kicking at the officers. (/d.).

When Rivens-Baker continued to kick, Bradley used her chemical agent to subdue

him. (/d.). Because Rivens-Baker was. on the floor and was struggling and kicking,

some of the chemical agent got onto his genitals, face, and aa (Id).

Despite these factual disputes about the incident itself, the defendants assert □

that they are entitled to summary judgment in their favor on legal grounds.

Defendants Bradley, Fasola, Onyeahialam, and Onwusa contend that the claims

against them should be dismissed because Rivens-Baker failed to exhaust his

administrative remedies before filing this action. (Ud. at 11-20). Nurse Shah

contends that the summary judgment evidence does not show that she was

deliberately indifferent to Rivens-Baker’s injuries. (/d. at 20-27). And Warden

Sanchez contends that Rivens-Baker’s allegations do not show that he violated

Rivens-Baker’s constitutional rights. (ld. at 27-29). In support of their motion for

summary judgment, the defendants filed the relevant portions of Rivens-Baker’s

medical records; the relevant portions of his seclusion and mental health records; the

use-of-force report; the relevant portions of his grievance records; the relevant

portions of his disciplinary records; the use-of-force video ofa portion of the events;

an excerpt from the Correctional Managed Health Care Policy Manual; and an

excerpt from TDCJ Offender Orientation Handbook relating to grievance

procedures. (Dkts. 53-1, 53-2, 53-3, 53-4, 53-5, 53-6, 53-7, 53-8).

In his response, Rivens-Baker clarifies that he is seeking declaratory relief

against the defendants imine eaieral capacities and monetary relief against them in

their individual capacities. (Dkt. 64, pp. 1-2). He contents that he tried to exhaust

his administrative remedies ‘but that the TDCI. grievance system is □

“faulty/irregular/and inconsistent.” (/d. at 2). He asserts that TDCJ officials did □□□

return his processed Step 1 grievances to him, so he could not file timely Step 2

grievances. (Id. at 2-3). He contends that factual disputes exist concerning whether

he timely filed grievances and whether they were properly processed and that these

disputes should preclude summary judgment on this basis. (/d. at 3). Finally, he

disputes the defendants’ characterization of the facts relating to his claims against □

Nurse Shah and Warden Sanchez. (/d. at 4-7). Rivens-Baker attached his unsworn

declaration to his response, alleging that TDCI officials failed to follow their own .

| grievance processing procedures, which interfered with his ability to exhaust his □

administrative remedies. (Dkt. 64-1, p. 1-2). He also alleges that, contrary to the

defendants’ assertions, Nurse Shah had the authority to enter the seclusion order that

kept him confined in the seclusion cell without medical treatment. (Id. at 3).

In reply, the defendants assert that any possible claim Rivens-Baker might

have for prospective injunctive relief has been rendered moot by his transfer to a

different TDCJ unit. (kt. 69, p. 2). They assert that Rivens-Baker’s allegations

regarding the grievance processing, which are unsupported by evidence, are

insufficient to avoid summary judgment. (Id. at 3-5). They also assert that Rivens-

Baker’s unsupported and conclusory allegations about the facts of the May 13

incident are □□□ ees avoid sare jadement (Id. at 5-14).

I. APPLICABLELAW

A. Actions Under 42 U.S.C. § 1983

Rivens-Baker brings his complaint against the defendants under 42 U.S.C.

§ 1983. “Section 1983 does not create any substantive rights, but instead was

designed to provide a remedy for violations of statutory and constitutional rights.” □

Lafleur v. Texas Dep't of Health, 126 F.3d 758, 759 (Sth Cir. 1997) (per curiam);

see also Baker v. McCollan; 443 U.S. 137, 144 n.3 (1979). To state a valid claim

under § 1983, a plaintiff must (1) allege a violation of rights secured by the

Constitution or laws of the United States, and (2) demonstrate that the alleged

deprivation was committed by a person acting under color of state law. See West v.

Atkins, 487 U.S. 42, 48 (1988); Gomez v Galman, 18 F.4th 769, 775 (Sth Cir. 2021).

(per curiam). The dispute in this case focuses on the first element whether the

defendants violated Rivens-Baker’s constitutional rights.

B. Summary-Judgment Standard . □

The defendants opened to Rivens-Baker’s amended complaint with a

motion for summary judgment. “Summary judgment is appropriate only if ‘the

movant shows that there is no genuine issue as to any material fact and the movant

is entitled to judgment.as a matter of law.’” Tolan v. Cotton, 572 U.S. 650, 656-57

(2014) (per curiam) (quoting FED. R. CIv. P. 56(a)). “The movant bears the burden

of identifying those portions of the record it believes demonstrate the absence of a

genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253,261 □

(Sth Cir. 2007) (citing Celotex Corp. v. Catrett, 477 US. 317, 322-25 (1986)). “A

fact is material if its resolution could affect the outcome of the action.” Dyer v.

Houston, 964 F.3d 374, 379 (5th Cir. 2020) (quoting Sierra Club, Inc. v. Sandy Creek .

Energy Assocs., L.P., 627 F.3d 134, 134 (Sth Cir. 2010)). “A dispute is genuine if

the evidence is such that a- reasonable jury could return a verdict for the nonmoving

party.” Westfall v. Luna, 903 F.3d.534, 546 (5th Cir. 2018) (cleaned up).

When considering a motion for summary judgment, the Court must view all

evidence and draw all inferences “in the light most favorable to the [nonmoving]

party.” Tolan, 572 U.S. at 657 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970)); see also Dyer, 964 F.3d at 380. However, if record evidence clearly

contradicts the plaintiffs version of events, the Court “should not adopt that version

of the facts for purposes of ruling on a monon for summary judgment.” Waddleton

v. Rodriguez, 750 F. App’x 248, 253-54 (Sth Cir. 201 8) (per curiam) (quoting Scott

v. Harris, 550 U.S. 372, 380 (2007). This is particularly true when there is video

evidence. When video evidence exists, the Court will “view[] the facts in the light

depicted by the videotape.” Salazar v. Molina, 37 F.4th 278, 280 (Sth Cir. 2022)

(quoting Scott, 550 U.S. at 381); see also Betts v. Brennan, 22 F.4th 577, 582 (5th

Cir. 2022) (“[W]e assign greater weight, even at the summary judgment stage, to the

video recording taken at the scene.”) (cleaned up); Carnaby v. City of Houston, 636

F.3d 183, 187 (Sth Cir. 201 1) (“A court... need not rely on the plaintiffs description -

of the facts where the record discredits that peserionon but should instead consider

the facts in the light depicted by the videotape.”) (cleaned up).

- - When both parties have submitted evidence that tends to show conflicting □

facts, “the evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313,

315 (Sth Cir. 1995). However, the Court will not consider the nonmoving party’s

conclusory allegations and unsubstantiated assertions as evidence. See Little v.

_ Liquid Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (en banc). After viewing the

offered evidence in the light most favorable to the nonmoving party, summary

judgment may be granted only if no genuine disputes of fact exist and no reasonable

jury could return a verdict for the nonmoving party. See, e.g. Rubinstein v. Adm’rs

of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000).

C. Pro Se Pleadings

Because Rivens-Baker is proceeding pro se, the Court construes his filings

liberally, subjecting them to “less stringent standards than formal pleadings drafted

by lawyers|[.]” Haines v. Kerner, 404 US. 519, 520 (1972) (per curiam). But even

under this lenient standard, pro se litigants must still “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. (footnotes omitted).

Ill, DISCUSSION

A. Official Capacity Claims

In the supplement to his amended complaint, Rivens-Baker asserts that he

seeks relief from the defendants in both their official and individual capacities. (Dkt.

12, p. 3). After the defendants filed their motion for summary judgment, Rivens-

Baker clarified that he is seeking declaratory or injunctive relief against the

- defendants only in their official capacities. (Dkt. 64, p. 1-2). Even with □□□ □□

clarification, Rivens-Baker may not proceed with his claims for this relief because

it is barred by the Eleventh Amendment. □

The Eleventh Amendment bars claims for declaratory or injunctive relief

against a State or state actor when those claims concern a state official’s past actions □

rather than an ongoing violation of federal law. See rere v. Mansour, 474 U.S. 64,

68 (1985) (citing Ex parte Young, 209 U.S. 123 (1908)). To determine whether the

plaintiff's claims are barred by the Eleventh Amendment, “a court need only conduct

a straightforward inquiry ato whether the complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as prospective.” Verizon Md.,

Inc. v. Pub. Serv. Cone ’n of Md., 535 US. 635, 645 (2002). If the plaintiff seeks

only retroactive relief, Eleventh Amendment immunity bars the claim. See Green,

474 US. at 71.

In this case, Rivens-Baker does not seek declaratory relief relating to an on-

going violation of federal law; instead, he seeks a declaration that the defendants’

past actions violated his constitutional rights. Becmre this relief is not available

against the defendants in their official capacities, Rivens-Baker’s claims for

11

injunctive relief against the defendants in their official capacities are barred by the

Eleventh Amendment. Rivens-Baker’s for declaratory and injunctive relief

against the defendants in their official capacities are ee with prejudice.

B. Individual Capacity Claims

To the □ that Rivens-Baker sues the defendants in their individual

capacities for money damages, his claims are not barred by the Eleventh

Amendment. Therefore, the Court will address those claims in more detail below.

1. Claims Against Bradley, Fasola, Onyeahialam, and Onwusa

Defendants Bradley, Fasola, Onyeahialam, and Onwusa contend that Rivens-

Baker’s claims against them erent be dismissed because he failed to exhaust his.

administrative remedies before filing this action. (Docket Entry No. 53, pp. 1 1-20).

The summary judgment evidence supports this assertion. :

The Prison Litigation Reform Act bars an inmate’s § 1983 action concerning

“prison conditions” until “such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). The. Supreme Court has broadly interpreted the

phrase “prison conditions” to include all types of constitutional claims, including

allegations of the use of excessive force. See Woodford v. Neo, 548 U.S. 81, 84

(2006); Porter v. Nussle, 534 U.S. 516, 532 (2002) (“Tw]e hold that the PLRA’s □

‘exhaustion requirement applies to all inmate suits about prison life, whether they

12

involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong.”). Exhaustion of administrative remedies is

mandatory, regardless of the forms of relief sought or offered through administrative

avenues. See Porter, 534 U.S. at 524. In addition, courts require “proper exhaustion

of administrative remedies.” See Woodford, 548 U.S. at 83-84 (emphasis added). A

prisoner does not properly exhaust the grievance process “by filing an untimely or

otherwise procedurally defective administrative grievance or appeal.” Id. And

unlike some circuits, the Fifth Circuit takes “a strict approach” to the exhaustion

requirement. Johnson y. Ford, 261 F. App’x 752, 755 (5th Cir. 2008) (per curiam).

Therefore, if a prisoner fails to properly exhaust the available administrative □

remedies, “a court may not excuse a failure to exhaust” regardless of the

circumstances. Ross v. Blake, 578 U.S. 632, 639 (2016).. Instead, if an inmate does

not properly exhaust his administrative remedies before filing suit, his claims must

be dismissed. See Wormeen v. Johnson, 385 F.3d 503, 515 (Sth Cir. 2004).

Texas prisons have a two-step grievance process that applies to all prisoner

grievances. Inmates must first file a Step 1 grievance, which “must be filed within

fifteen days of the complained-of incident, [and which] is handled within the

prisoner’s facility.” Jd. The facility has forty days in which to respond to most

grievances, and forty-five days in which to respond to a medical grievance. (Dkt.

13 7

53-8, p. 3). If the prisoner is nay with the response to a Step 1 grievance, he

may appeal that decision by filing a Step 2 grievance within fifteen days from the _

date the processed Serene is returned to the prisoner. (/d.). The State has forty

days in which to respond to most Step 2 gtievances, and forty-five days in which to

respond to medical grievances. (/d.). A prisoner must pursue a grievance through □

both steps of the grievance process before that process will be considered exhausted.

Johnson, 385 F.3d at 515; see also Wright y. Hollingsworth, 260 F.3d 357, 358 (Sth

Cir. 2001). : □□

In this case, the defendants have filed Rivens-Baker’s erence records from

February 1, 2021, through November 30, 2021, in support of their motion for □

summary judgment. (Dkt. 53-4). These records show that Rivens-Baker filed

multiple grievances. during that period, including both Step 1 grievances and Step 2

appeals and four grievances relating to events similar to those described in Rivens- □

Baker’s current complaint. (/d. at 3-31).

Rivens-Baker filed Step 1 grievance # 202109672 on April 15, 2021,

alleging that officials at the Connally Unit used excessive force againsthimon April

5, 2021, and then were deliberately indifferent to his resulting injuries. (Id. at 3-4).

The grievance does not identify any of the defendants, and the events occurred more -

than a month peor the events at issue in this action at a different TDCJ unit from

ug

where these defendants are located.

Rivens-Baker filed Step 1 grievance #2021114563 on May 26, 2021, alleging

that he was subj ected to excessive force and the use of chemical agents by defendant

Bradley at the Jester 4 Unit on April 11, 2021.1 (/d. at 23-24). This grievance does

not identify any other defendant as being involved in the incident. (/d.). This

grievance was dismissed as a duplicate of grievance # 2021096721, which appears

to be an error. (Id at 24). However, Rivens-Baker did not file a Step 2 grievance to

appeal the dismissal of the Step 1 grievance.

Rivens-Baker filed Step 1 grievance #202113975 on May 25, 2021, alleging

an excessive use of force by defendant Bradley on an unidentified date. (/d. at 29).

Despite not receiving a response to this grievance, Rivens-Baker did not file a Step

2 grievance appeal relating to this grievance. .

Finally, Rivens-Baker filed Step 1 grievance # 2022001161 on September 3,

2021, complaining about the disciplinary sanctions he received as a result of the May

13 incident. (/d. at 25). This grievance was returned unprocessed because it was

filed after the time to file a grievance had expired. Ud.). Rivens-Baker did not file

a Step 2 grievance appeal from that adverse decision.

These records tend to show that Rivens-Baker did not exhaust his □

'Rivens-Baker’s medical records appear to indicate that he was at the Connally Unit

rather than the Jester [V Unit in April 2021. O's. 53-1, pp. 34-38). □

administrative remedies as to his claims aeeine the defendants before he filed this

action. He did not file a erievance against Fasola, Onyeahialam, or Onwusa at any

-- time fOr their conduct on May 13. And even assuming that his grievances identifying

Bradley relate to the events of May 13, rather than April 5 or April 11, Rivens-Baker

did not exhaust the grievance process as to these claims because he did not file Step

2 grievance appeals of the decisions on those Step 1 grievances. By failing to pursue

_ his grievances through the entire two-step gtievance process, Rivens-Baker failed to

exhaust his administrative remedies and is not entitled to proceed with this action.

In his response to the defendants’ motion, Rivens-Baker points to the original

complaint filed in this action, to which he attached copies of the Step 1 and Step 2

grievances relating to. gtievance ie 2021097711. (Dkts. 64, p. 2; 1-1, pp. 5-8). These

attachments show that Step 1 grievance # 2021097711 ‘was filed on April 19, 2021,

and described events that occurred on either April 5 or 1 L, 2021, at TDCJ’s Connelly

Unit. (Dkts. 1-1, pp. 5-8; 53-4, pp. 11-14). These Step 1 and Step 2 grievances,

relating to events that occurred.on a different date at a different TDCJ Unit from the

events underlying this action, do aot establish that Rivens-Baker exhausted his

administrative remedies as to the claims pending in this current action, . □

Rivens-Baker also contends that TDCJ °s failure to comply with its own

policies prevented him from exhausting his administrative remedies. (Dkt. 64,

16

2-3). He asserts that he never received a response to his Step 1 grievance

# 202113975, so he was unable to file a timely Step 2 grievance. (/d.). He contends

that he filed Step 1 grievance # 2022001161, to try to “exhaust his claims that were

never returned back to him.” (/d.). He alleges that TDCI officials interfered with -

his ability to exhaust his remedies by failing to follow their own grievance

procedures. (/d. at 3). He also points to his unsworn declaration in which he states .

that he intends to testify that TDCJ officials did not follow the established grievance

procedures. (Dkt. 64-1, p. 1). :

Even taking Rivens-Baker’s allegations as true, these facts do not excuse his

failure to exhaust his administrative remedies because a prisoner must continue to

pursue his administrative remedies even if TDCJ does not timely respond to a Step □

1 grievance. As our sister court has explained:

Fifth Circuit case precedent states “that the requirement that a prisoner

pursues the grievance remedy to conclusion ‘does not fall by the

wayside in the event that the prison fails to respond to the prisoner’s

grievance at some preliminary step in the grievance process. Instead,

the prison’s failure to timely respond simply entitles the prisoner to

move on to the next step in the process.’” Cantwell v. Sterling, 2016

WL 7971768, *5 (W.D. Tex. May 18, 2016) (citing Underwood v.

Wilson, 151 F.3d 292, 295 (Sth Cir. 1998)). Although Plaintiff's step 1 □

grievance went unanswered, under the law of this Circuit, Plaintiff was □

nevertheless required to file a step 2 grievance in the exhaustion process

before filing suit. Thus, once the time period expired for TDCI to file

a response, Plaintiffs step 1 grievance was considered exhausted and

he was required to file a step 2 grievance. It is undisputed from

Plaintiff's sworn affidavit that he did not file a step 2 grievance. As

17

such, Plaintiff has failed to properly exhaust his administrative

remedies. Cantwell, 2016 WL 7971768, *5 (W.D. Tex. May 18, 2016)

(citing Underwood, 151 F.3d 292-295; Hicks v. Lingle, 370 F. App’x

497, 499 (Sth Cir. 2010); Wilson v. Epps, 776 F.3d 296, 299 (Sth Cir.

2015)). To the extent Plaintiff claims he could not file a step 2

grievance without a copy of the completed and answered step 1

grievance, Plaintiff’s remedy in that situation was to either request a

copy of the completed and answered step 1 from the grievance

department if one existed or file another step 1. grievance. Plaintiff,

again, concedes he never attempted to file a step 2 or another step 1 .

grievance.

Carter vy. Boyd, No. 9:19-CV-163, 2022 WL 3146319, at *4 (E.D. Tex. June 15,

2022), report and recommendation adopted, No. 9:19-CV-163, 2022 WL 3141871

(E.D. Tex. Aug. 5, 2022). Because the summary judgment evidence in that case

showed that Carter had not exhausted his administrative remedies, summary

judgment was granted in favor of the defendants. Id.

In this case, as in Carter, Rivens-Baker alleges that he could not file a timely

Step 2 appeal in grievance # 202113975 because he never received a response to his

Step 1 grievance. But, as in Carter, the lack of a response simply entitled Rivens-

Baker to proceed with the grievance process and file a Step 2 grievance appeal when

the forty-day period for responding to the Step 1 grievance had expired. He did not.

Instead, on September 3, 2021, he filed a second Step 1 grievance, grievance #

2022001161, concerning the same excessive force incident. This grievance was

untimely, whether it was considered a new Step 1 grievance ora Step 2 grievance □

18

appeal from grievance # 202113975. Further, when grievance # 2022001161 was

rejected as a duplicate, Rivens-Baker did not file a Step 2 grievance appeal from that

decision. Because Rivens-Baker never filed a timely Step 2 grievance appeal after

TDCJ failed to properly and timely respond to his Step 1 grievance, he failed to

properly exhaust his available administrative remedies as to these claims.

Finally, Rivens-Baker asserts in his unsworn declaration that he filed the

proper grievances and that TDCJ’s records are incomplete. (Dkt. 64-1, pp. 1-2). But □

Rivens-Baker admits that he did not retain a copy of the grievances he alleges that □

he filed, and he asserts that he will simply testify to having filed them. (/d.). These

conclusory and unsupported allegations do not constitute evidence, see Little, 37

F.3d at 1075, and they are insufficient to satisfy Rivens-Baker’s burden to show that .

disputed issues of fact exist on the question of whether he properly exhausted □□□

administrative remedies.

The competent summary judgment evidence before the Court shows that

Rivens-Baker did not exhaust his administrative remedies as to his claims against

Bradley, Fasola, Onyeahialam, and Onwusa before filing this action. Because no

genuine dispute of material fact exist as to these claims, these defendants are entitled

to summary judgment in their favor. Rivens-Baker’s claims against defendants

Bradley, Fasola, Onyeahialam, and Onwusa are dismissed with prejudice.

19

2. Claims Against Nurse Shah

Rivens-Baker seeks money damages from Nurse Shah based on his claims

that she violated his Eighth Amendment rights by refusing to examine him or

provide him with treatment after he was sprayed with a chemical agent and that she

falsified records: to. improperly keep him in the seclusion cell. The competent

summary judgment evidence does not support these claims.

a. Deliberate Indifference

The Eighth Amendment protects prisoners from cruel and unusual punishment

arising from a prison official’s deliberate indifference toward a prisoner’s injuries or

pain. See Estelle v. Gamble, 429 U.S. 97, 105 (1976). To prevail on a deliberate.

indifference claim, the prisoner must prove that the prison medical provider acted

with “deliberate indifference” to a “serious medical need” in a manner that

“constitutes the unnecessary and wanton infliction of pain[.]” Jd. at 104 (cleaned

up); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (emphasizing that “only

the unnecessary and wanton infliction of pain implicates the Eighth Amendment’)

(quoting Wilson v. Seiter, 501 U.S.-294, 297 (1988)). “To show an official was

deliberately indifferent, a plaintiff must demonstrate that the official is aware that an

‘inmate[ ] face[s] a substantial risk of serious harm and disregards that risk by failing

to take reasonable menses to abate it.”” Davis v. Luinpkin, 35 F.4th 958, 963 (Sth

20

Cir. 2022) (quoting Farmer, 511 U.S. at 847). But the deliberate indifference

standard is “extremely high.” Domino v. T x Dep’t of Crim. Just., 239 F.3d 752,

756 (Sth Cir. 2001). “Deliberate indifference is more than mere negligence or even

gross negligence.” Brown v. Callahan, 623 F.3d 249, 255 (Sth Cir. 2010). “Actions

and decisions by officials that are merely inept, erroneous, ineffective or negligent”

do not amount to deliberate indifference. Doe v. Dallas Indep. Sch. Dist., 153 F.3d □

211, 219 (Sth Cir. 1998). Neither do “[uJnsuccessful medical treatment, acts ‘of

negligence, . .. medical malpractice” or “a prisoner’s disagreement with his medical □

treatment, absent exceptional circumstances.” Gobert v. Caldwell, 463 F.3d 339,

346 (Sth Cir. 2006) (cleaned. up). instead? to obtain relief for a constitutional

violation based on deliberate indifference, the prisoner must show that the prison

medical provider “refused to treat him, ignored his complaints, intentionally treated

him incorrectly, or engaged in any similar conduct that would clearly evince a

_ wanton disregard for any serious medical needs.” Jd. (cleaned up).

In his amended complaint, Rivens-Baker alleges that Nurse Shah was

deliberately indifferent to his claims of injury from the excessive force. (Dkt. 11, p.

4). In his supplemental statement, he alleges that he began bleeding from his rectum □

while in seclusion, but that Nurse Shah denied him medical attention for this

condition. (Dkt. 12, p. 5). He further alleges that “during the course of his □

21

geclusion,” he was denied the right to use the restroom, forced to urinate and defecate

on the floor of his cell, denied food, and forced to suffer mental and emotional

trauma. (Id.). The summary judgment evidence contradicts these claims.

The medical records show that Rivens-Baker was in a seclusion cell as of

midnight on May 13. (Dkt. 53-2, p..15). At 7 a.m., Dr. Emiola ordered Rivens-

Baker’s release from the seclusion cell. (Jd. at 7-8). The use-of-force incident

pecuredis the defendants were taking Rivens-Baker to his new cell after a post-

seclusion shower. (/d. at 9-11). After the incident, Rivens-Baker was returned to a □

seclusion cell because he posed a danger to others.. (/d. at 11). Dr. Emiola entered

the order for Rivens-Baker to be returned to a seclusion cell. (/d.).

The nursing note signed by Nurse Shah indicates that when she observed

Rivens-Baker through the seclusion cell door, he did not oer to be in distress, that

he was breathing properly, and that his speech was clear and coherent. (/d.). She

noted that Rivens-Baker was not visibly injured and that he was moving about the

cell normally. (/d.). He also verbally denied having any injuries or breathing

difficulties. Cd. at 13). He was provided with water so that he could meen the

chemical agent off of himself. (Id. at'11).

These statements in Nurse Shah’s nursing notes are supported by the use-of-

force video in the record, which show Rivens-Baker moving normally as officers

22

- remove his hand and leg restraints and as he speaks with Nurse Shah through the cell

door. (Dkt. 53-6). The video also captures Rivens-Baker complaining that he □□

feeling burning from the chemical agent, and Nurse Shah telling him to wash the

agent off with the water he was provided. (/d.). Rivens-Baker complains ofno other □

injuries at that time. (/d.). □

The medical records show that while Rivens-Baker was in the seclusion cell, □

the nursing staff made visual checks of him every fifteen minutes ad offered him

the opportunity to go to the restroom. (Dkt. 53-2, p. 11). Rivens-Baker did not

indicate that he was suffering from any injuries during these checks. (/d.). Ina

nursing note from May 13 at 4:19 p.m., Rivens-Baker reported to Nurse Shah, “I

alright.” (Ud. at 18). He voiced no complaints of injury or harm. (/d.). There are

no other nursing notes from Nurse Shah; instead, Rivens-Baker was cared for after

that time by other medical staff. At 7:45 p.m., Dr. Moin renewed the order for

Rivens-Baker to be in the seclusion cell after Rivens-Baker was seen by Nurse Solly.

(Id at 22). . .

The medical records show that the first time Rivens-Baker voiced any

complaint of injuries from the May 13 incident was ori May 15. (Dkt. 53-1, p.11).

While standing at the nursing station, he told the nurse that his ears hurt “after they

gassed me” and that he was having problems defecating and urinating. (/d.). The

. 23

nurse checked Rivens-Baker’s ears, which had no redness or drainage. (Id.). The

nurse then advised Rivens-Baker to be sure to Meenhnorouchiy, in the shower and

that the burning from the chemical agent would gradually wear off. (/d.). The next

day, Rivens-Baker reported additional genital.concerns due to the chemical agent.

(Id. at 9). He was again told that the effects of the chemical agent would gradually

dissipate over the next few days. (/d.). Rivens-Baker was transferred to a new unit

on May 17. (id. at 8). His nursing assessment at his new unit reported that all

physical systems were normal. (Id. at 42-44)..

This medical evidence contradicts Rivens-Baker’s claims of deliberate

indifference. There is no record evidence that Nurse Shah was aware that Rivens-

Baker faced a “substantial risk of serious harm” or that she “disregard[ed] that risk

by failing to take reasonable measures to abate it”? Davis, 35 F.4th at 963. Rivens-

Baker specifically denied suffering any injury when Nurse Shah conducted the cell-

side assessment; instead, he complained only of burning from the chemical agent.

Nurse Shah told Rivens-Baker to use the water he had been provided to wash the

chemical agent off his skin to stop its effects. While Rivens-Baker asserts that Nurse

Shah should have physically examined him inside of the cell, he cannot show that □

such an examination was required when he had specifically denied any claims of

injury. And even if Nurse Shah’s advice to Rivens-Baker concerning the chemical

24

agent was inadequate, such facts would establish, at most, that her attempt to treat

him was ineffective rather than that she was deliberately indifferent to a risk of

serious physical harm. Rivens-Baker’s disagreement with the nature and extent of

the medical treatment he received is insufficient to support a claim for deliberate □

indifference. See, e.g., Arenas v. Calhoun, 922 F.3d 61 6, 620 (Sth Cir. 201 9) (noting

that a prisoner’s disagreement with his medical treatment does not constitute

deliberate indifference).

Rivens-Baker directs the Court’s attention to no evidence contradicting the

medical records and the video. Having failed to offer evidence sufficient to show

that genuine disputes of fact exist concerning whether Nurse Shah was deliberately

indifferent to Rivens-Baker’s serious medical needs, Rivens-Baker cannot avoid

entry of summary judgment in favor of Nurse Shah. His claim against her on this

basis is dismissed. □

b. Falsification of Records

Rivens-Baker also alleges that Nurse Shah falsified records so that he would

be kept in a seclusion cell. Even taking these allegations as true, these facts do not

allege a constitutional violation and so cannot support a claim under § 1983.

_ Falsifying prison records, standing alone, does not violate the Constitution.

See, e.g., Henderson v. Buttross, No. AcIT-CV-436-LY, 2017 WL 2391806, at *3

25

(W.D. Tex. June 2, 2017) (falsification of documents is not a constitutional violation

and cannot support a § 1983 claim); Fountain v. Thaler, Civil No. 6:13cv958, 2015

WL5 168775, at *11 (E.D. Tex. Sept. 2, 2015) (citing Hernandez v. Estelle 788 F.2d

1154, 1158 (Sth Cir, 1986)) (dismissing prisoner’s claim that defendants falsified _

grievances because such action does not violate the Constitution). Therefore,

conclusory allegations that menial records have been “falsified” are insufficient to

defeat a motion for summary judgment. See Knighten v. Ott, 69 F. App’x 657 (5th

Cir. 2003) (citing Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000)).

Instead, a prisoner must allege and show how the alleged falsification of records

violated his constitutional rights. See, e.g., Gravely v. Speranza, 219 F. App’x 213,

215 (3d Cir. 2007).

But Rivens-Baker does not allege facts showing either that keeping him in the

seclusion cell for three days violated his constitutional rights or that he was kept

there based on the records allegedly falsified by Nurse Shah. First, Rivens-Baker

alleges that his three-day stay ina seclusion cell violated the Correctional Managed

Care guidelines. But a defendant’s failure to follow TDCI and CMC guidelines and □

policies, without more, does not constitute a constitutional violation. See Williams

v. Stephens, 547 F. App’x 599, 600 (Sth Cir. 2013) (citing Hernandez v. Estelle, 788

F.2d 1154, 1158 (Sth Cir. 1986)). Moreover, the courts have held that keeping an

26

inmate in a seclusion or crisis-management cell for three days, standing alone, does

not rise to the level of a constitutional violation. See Davis v. Scott, 157 F.3d 1003,

1004-05 (Sth Cir. 1998). Therefore, even if Rivens-Baker is correct that the

defendants violated TDCJ policies by keeping him in the seclusion cell for three

days, those facts do not state a claim for a constitutional violation that would support

relief under § 1983.

Second, even if circumstances occurred during those three days that resulted

in a violation of Rivens-Baker’s constitutional rights, he has not shown that the □

violations were caused by Nurse Shah’s actions. Rivens-Baker alleges that during

his time in the seclusion cell, he was denied sufficient food, denied sufficient trips

to the restroom, and denied further medical care. But even taking these mileeai □

as true, the summary judgment evidence does not show that these violations resulted

from Nurse Shah’s falsified notes. The summary judgment evidence shows that

Nurse Shah saw Rivens-Baker for a final time at 4:19 p.m. on May 13. More than

three hours later, his time in the seclusion cell was extended on orders from Dr.

Moin, after Rivens-Baker was seen by Nurse Solly. (Dkt. 53-2, p. 22). Any potential

constitutional violations Rivens-Baker may have suffered after that order was

entered were not the result of any actions taken by Nurse Shah, and.she cannot be

held liable for harm that resulted from the allegedly unconstitutional actions of

27

others. .

Rivens-Baker has not carried his burden to show that disputed issues of fact

exist material to the question of whether Nurse Shah violated his constitutional

rights. She is therefore entitled to summary judgment in her favor, and Rivens- |

Baker’s claims against Nurse Shah ate dismissed with prejudice.

3. Claims Against Warden Sanchez

Rivens-Baker alleges that Warden Sanchez is liable for two reasons:

(1) because he knew of the excessive force incident but failed to properly investigate

the incident or Rivens-Baker’s otievances, and (2) because he failed to properly train .

his staff. These allegations are not sufficient to withstand the defendants’ motion

for summary judgment.

a. Failure to Investigate

To the extent that Rivens-Baker alleges that Warden Sanchez failed to

investigate Rivens-Baker’s grievances or file proper reports, he does not allege facts

showing a constitutional violation because prisoners have no constitutional right to

the satisfactory investigation or resolution of administrative grievances or informal

complaints. See Geiger v. Jowers, 404 F.3d 371, 374 (Sth Cir. 2005). Without

establishing that a constitutional right was violated, Rivens-Baker is not entitled-to

relief under § 1983. His claim that Warden Sanchez failed to investigate andremedy

28

his grievances about the excessive force incident does not state a claim upon which

relief can be granted, and Warden Sanchez is entitled to summary judgment in his

_ favor on this claim.

b. Failure to Train —

To the extent that Rivens-Baker alleges that Warden Sanchez failed to

properly train employees, Rivens-Baker fails to show that disputed issues of fact

exist sufficient to overcome the motion for summary judgment. .

“When, as here, plaintiffs allege that a supervisory official failed to train or □

supervise, they must prove that (1) the official failed to train or supervise the

correctional officers; (2) a causal link exists between the failure to train or supervise

and the alleged violation of the inmate’s rights; and (3) the failure to train or

supervise amounted to deliberate indifference.” Walker v. Upshaw, 515 F. App’x □ □

334, 339 (Sth Cir. 2013). To show deliberate indifference in this context, the

plaintiff must “show that the failure to train reflects a deliberate or conscious choice

to endanger constitutional rights.” Jd. at 340 (quoting Estate of Davis ex rel.

McCully v. City of Richmond Hills, 406 F3d 375, 3 83 (Sth Cir. 2005)). To make

this showing, “[t]he plaintiff must offer “[plroof of more than a single instance of

the lack of training or supervision causing a violation of constitutional rights.”

r hompson v. Upshur County, Tex., 245 F.3d 447, 459 (Sth Cir. 2001). Instead, the

□□ 29 .

plaintiff must “generally demonstrate at least a pattern of violations.” Id.

Otherwise, there is no indication that the supervisor was on notice of the deficiency,

and “[w]ithout notice that a course of training is deficient in a particular respect,

decisionmakers can hardly be said to have deliberately chosen a training program

that will cause violations of constitutional tights.” Connick v. Thompson, 563 U.S.

51,62 (2011).

In this case, the summary judgment evidence shows that one officer was found

to have violated two TDCJ policies during the incident with Rivens-Baker. (Dkt.

53-3, pp. 3, 11). Specifically, Sergeant Ojigho was found to have turned off the.

video camera to replace the battery after Rivens-Baker was placed in the seclusion

cell but while the officers were still inside and to have failed to properly instruct

Rivens-Baker on decontamination procedures. (Dkt. 53-3, p. 1 1). But Rivens-Baker |

offers no evidence that a failure to train Sergeant Ojigho in either of these procedures

was causally related to his claimed constitutional violations, nor does he offer any

evidence of a pattern of similar violations that would tend to put Warden Sanchez

on notice that the training of these prison employees was deficient. Absent such

evidence, Rivens-Baker has not raised a genuine issue of fact material to the question

of whether Warden Sanchez was deliberately indifferent to the need for additional

training. .

Having failed to point to pridence sufficient to raise a disputed issue of

material fact concerning his claims against Warden Sanchez, Rivens-Baker has not

carried his burden when faced with the motion for summary judgment. His claims

against Warden Sanchez are dismissed with prejudice.

IV. CONCLUSION .

Based on the above, the co ORDERS as follows:

1. The defendants’ motion for summary judgment, (Docket Entry No. 53), is

GRANTED. oe □

2. Rivens-Baker’s action is DISMISSED with prejudice.

3. Final judgment will be separately entered.

The Clerk will provide a copy of this Order to the parties.

SIGNED at Houston, Texas, on eet i 7 , 2023.

Rit

DAVIDHITINER.

. UNITED STATES DISTRICT JUDGE