Lee v. Brokenberry

IN THE UNITED STATES DISTRICT COURT March 19, 2025

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

§

Antwanne Lee, §

§

Plaintiff, §

§ Civil Action No. 4:23-cv-01470

v. §

§

Olivia Brokenberry and Harris §

County, §

§

Defendants. §

MEMORANDUM AND ORDER

Defendant Olivia Brokenberry, the sole remaining defendant in this

case, Dkt. 38, has filed a motion for summary judgment on Plaintiff Antwanne

Lee’s claims. Dkt. 47, 48. After carefully considering the motion, Lee’s

response, Dkt. 49, 50, Brokenberry’s reply, Dkt. 53, and the applicable law, the

Court concludes that Brokenberry’s motion for summary judgment (Dkt. 47)

should be granted.

Background

On November 29, 2021, Lee was detained at the Harris County Jail

awaiting trial. Dkt. 50-4 at 1 (Lee’s affidavit); Dkt. 47-3 at 14, 34 (Lee’s

deposition). That day, Brokenberry was stationed in the “picket,” an

observation room where detention officers watched the cells. See Dkt. 50-3 at

15-16 (Lee’s description of the picket). The picket has one-way mirrored glass:

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The first floor of the cell block has a common area with tables, toilets

along the left wall, bunks against the back wall, and stairs on the right that

ascend to a loft-like area with more bunk beds.

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Dkt. 56-1 at 20. Inside the picket, a detention officer can see the bunk beds

against the back wall of the second floor, but they are far away.

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Dkt. 56-1 at 5; see also Dkt. 57 (Brokenberry’s videos nos. 1 & 2 from inside the

picket, and no. 3 from the second floor).

Upon arriving at the cell block, Lee allegedly saw “two inmates shake

their head[s] like don’t come in here.” Dkt. 47-3 at 37. Lee told Brokenberry

that he was “in fear of [his] life.” Id. at 63. When Brokenberry directed him to

enter the cell anyway, Lee decided that he would masturbate in front of her,

believing that this tactic would prompt her to move him elsewhere. See id. at

61-63; see also id. at 49 (Lee explaining that he decided to do this as a

“disrespectful” act toward Brokenberry).

Lee sat on the top bunk against the back wall with a white sheet draped

around his shoulders and a mask on his face.! Compare Dkt. 47-4 at 00:41-

24:59 (DX-4, timestamp 17:06:39, Lee’s appearance in the upstairs area and

climbing onto the top bunk, remaining there until he climbs down around

17:30:57), with Dkt. 56-1 at 18-19 (view of the picket from the farthest bunk).

Lee’s bunk was opposite the top of the stairs, farthest from the picket, and

parallel to a door on the second floor:

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Dkt. 47-4 at 1:00 (timestamp 17:06:58). Through the second-floor door,

inmates could communicate with other inmates in the adjoining cell block.

Dkt. 61-12 at 27 (Brokenberry’s deposition).

1 This event occurred during the COVID-19 pandemic. That is why Lee was

wearing a mask. See, e.g., Dkt. 47-3 at 99, 132 (discussing Lee’s and a

detention officer’s “COVID mask[s]”).

Lee masturbated intermittently while seated on the bunk. See, e.g., Dkt.

47-3 at 108, 110-13. Speaking over the intercom, Brokenberry ordered Lee to

stop masturbating. See Dkt. 47-3 at 92 (alleging that Brokenberry said, “Lee,

I know you ain’t nutting on that boy’s bed, you nasty mother f*cker”); see also

Dkt. 47-2 at 3, 5 (Brokenberry recalling that she instructed Lee to stop

masturbating, admitting that she probably called him a “mother f*cker” when

doing so). According to Lee, he responded to Brokenberry that he was not

“jacking off on her anymore.” Dkt. 47-3 at 92.

At some point before or after that exchange, an inmate ran upstairs to

the door on the second floor and communicated with someone on the other side

of the door. See Dkt. 47-4 at 6:44-7:27 (timestamp 17:12:42 to 17:13:26).

According to Lee, that inmate told the other person, “[W]e fixing to roll that

n*gga, we fixing to roll them.” Dkt. 47-3 at 110-11. Eventually, more inmates

came and went from the second floor, with a few lingering by and appearing to

speak with someone through the door. See Dkt. 47-4 at 14:00-15:04 (timestamp

17:19:58 to 17:21:02). Lee claims he told those other inmates that he was

“jacking off on the ho,” Dkt. 47-3 at 116 (asserting this exchange happened

between 15:02 to 15:21 of the video), but the video confirms that Lee did not

interact with those inmates. See Dkt. 47-4 at 15:02-15:21.

At about 5:22 p.m., while Lee remained seated on the bunk bed, an

inmate descended partway down the stairs and turned toward the picket. See

Dkt. 47-6 at 00:46-52 (DX-5A, first floor video, timestamp 17:22:47 to :53); see

also Dkt. 47-3 at 140-42. Neither his hands nor his face are visible on the

video. See Dkt. 47-6 at 00:46-52. But Lee claims that the inmate looked toward

Brokenberry in the picket, asking “Do you want me to roll him?” while making

a circular gesture with his hands. Dkt. 47-3 at 142-43, 147; Dkt. 47-6 at 00:46-

52. According to Lee, Brokenberry responded by saying “Hurry up, I’m fixing

to get off work.” Dkt. 47-3 at 143. Lee did not hear either speaker say those

things. See Dkt. 47-1 at 3; Dkt. 47-3 at 95-96. Instead, Lee claimed that he

read both speakers’ lips. See Dkt. 47-1 at 3; Dkt. 47-3 at 54, 95-96.

The inmate who allegedly made the gesture continued down the stairs,

where many other inmates were located on the first floor. See Dkt. 47-6 at

00:52-57 (timestamp 17:22:52 to :57). Despite Lee’s assertions he was

“immediately assaulted,” Dkt. 61 at 10, the video shows that the inmates

milled around for the next 9 or 10 minutes. Several inmates played cards or

were gathered around a back table. See Dkt. 47-6 at 1:31-3:30 (timestamp

17:23:32 to 17:25:30). A few donned masks: one intermittently pulled the mask

down around his chin, see id. at 1:30-1:54 (timestamp 17:23:31 to :54), another

had a mask on his face, and a third, on top of his head. See id. at 1:40-1:52.

The inmate who initially placed the mask on the back of his head set the

mask on a table, took off his shirt, unspooled bundles of toilet paper, and went

toward the restrooms on the left side of the cell block. See id. at 1:54-3:08

(timestamp 17:23:54 to 17:25:09). Another inmate came downstairs with a

shirt tied around his face like a makeshift mask. See id. at 3:10-:14 (timestamp

17:25:11 to :15); see also Dkt. 47-4 at 19:03-:06 (timestamp 17:25:01 to :04)

(same inmate grabbing t-shirt from a second-floor bunk).

Inmates also moved between the first and second floors. See Dkt. 47-4

at 14:00-17:26, 19:02-:21, 19:38-22:41 (timestamp range from 17:19:57 to

17:28:39); see also Dkt. 47-6 at 2:37-:59 (inmates ascending the stairs, 17:24:37

to 17:25:00). Some inmates went to their bunks to retrieve possessions, while

others appeared to communicate with inmates through the second-floor door.

Dkt. 47-4 at 13:59-16:47 (timestamp 17:19:57 to 17:22:45). During this period,

the inmate who allegedly made the gesture earlier went upstairs and grabbed

a towel off a bunk. Dkt. 47-6 at 2:48-:57 (first-floor video, timestamp 17:24:49

to :59); Dkt. 47-4 at 19:05-:21 (second-floor video, timestamp 17:25:03 to :19).

He came downstairs and wandered toward the back of the cell block, draping

the towel over the back of his head and tying it like a do-rag. See Dkt. 47-6 at

3:21-:46 (timestamp 17:25:22 to :46).

While on the first floor, the same inmate picked up a mop from a bucket

and appeared to unscrew the head before walking away. See id. at 5:05-:23

(17:27:05 to :23). Several other inmates congregated briefly on the stairs. See

id. at 6:42-7:22 (17:28:43 to 17:29:23). At the back table, the inmate who had

allegedly made the gesture tied his shoes. See id. at 7:44-8:01 (timestamp

17:29:45 to 17:30:02). Yet another inmate played briefly with the mop, moving

it up and down in the bucket, with the mophead still attached, before setting

it against a wall. See id. 9:02-9:22 (timestamp 17:31:03 to :22). Under the

television screen, an inmate used the “hot pot” allegedly to heat water. See

Dkt. 61-12 at 28 (Brokenberry’s testimony describing this footage); Dkt. 47-6

at 9:10-:18 (timestamp 17:31:10 to :19, inmate with towel/t-shirt on his head

reaching down and tinkering with a device on the floor under the television).

According to Lee, he went downstairs after hearing a voice declare that

they were going to “roll” someone. See Dkt. 47-3 at 151-53. Lee walked to the

first floor and went to use the restroom. Dkt. 47-6 at 9:21-:39 (timestamp

17:31:21 to :39); Dkt. 47-3 at 158. At that time, most of the inmates appeared

to be hanging around near the back of the first floor, closer to the bunk beds,

much as they were before Lee appeared downstairs. Compare, e.g., Dkt. 47-6

at 8:11 (timestamp 17:30:11, before Lee’s appearance), with id. at 9:26

(timestamp 17:31:27). As Lee headed for the restroom, an inmate came

downstairs with a broom in his hands and set it against the wall by the stairs.

See id. at 9:30-:38 (timestamp 17:31:31 to :39).

Lee emerged from the restroom area, pausing to look toward the inmates

congregating in the back of the common area. See id. at 9:59-10:06 (timestamp

17:32:00 to :07). He walked toward the front area, appeared to interact with

someone toward the front (who was standing off camera), and removed his face

mask. See id. at 10:14-:24 (timestamp 17:32:15 to :24).

Suddenly, someone took a swing at Lee. See id. at 10:25 (timestamp

17:32:25). When Lee moved backward, the inmate who allegedly made the

gesture toward the picket earlier rushed forward and kicked Lee in the head.

See id. at 10:26-:27 (timestamp 17:32:27 to :28). Several other inmates joined

in, punching Lee, striking him with a broomstick and hitting him with their

fists. See id. at 10:26-:50 (timestamp 17:32:27 to :50). Lee started partway up

the stairs before falling to a seated position. Id. at 10:51-:55 (timestamp

17:32:52 to :56). As he rose, an inmate flung liquid at Lee from a dispenser.

Id. at 10:55-11:03 (timestamp 17:32:55 to 17:33:03). Lee turned toward the

picket. See id. According to Lee, Brokenberry called for other detention officers

(“rovers”) to assist. Dkt. 47-3 at 164-65 (citing video at 10:51). This was less

than 30 seconds after the attack began.

A few seconds later, a group of inmates, some carrying sticks, ascended

the stairs and struck Lee again, prompting him to punch an assailant. Dkt.

47-6 at 11:21-:27 (timestamp 17:33:22 to :28). Lee and his attackers descended

to the first floor, where Lee was struck by inmates wielding a mop and the head

of a broom. Id. at 11:34-:39 (timestamp 17:33:35 to :40). At some point, Lee

was stabbed, grabbed a knife that had fallen, and stabbed other inmate(s). See

Dkt. 47-3 at 165-66.

About 70 seconds after the assault began, a uniformed detention officer

arrived, prompting the attackers to disperse. Dkt. 47-6 at 11:36 (timestamp

17:33:37). The officer deployed pepper spray on Lee and at least one attacker.

See Dkt. 47-3 at 165, 169 (noting detainees were covering their faces due to the

pepper spray). About three minutes later, four more detention officers arrived

and took two attackers away, one of whom had been stabbed. See Dkt. 47-6 at

14:27-:44 (timestamp 17:36:27 to :44); Dkt. 47-3 at 168. Thereafter, Lee was

removed from the cell block and taken to a clinic. See Dkt. 47-3 at 166-67.

According to Lee, the inmates had attacked him because they were “jealous”

he had masturbated at Brokenberry. See id. at 83-84, 91-92.

Lee sued Brokenberry and Harris County in state court, and the suit was

removed to this Court. See Dkt. 1. Lee then filed multiple amended pleadings.

See Dkt. 7, 13, 23. In his third amended complaint, Lee alleged that

Brokenberry had explicitly authorized the November 29, 2021 attack, as a

basis for both a conspiracy and failure-to-protect claim under 42 U.S.C. § 1983.

See Dkt. 23 at 3-6. Because of Lee’s allegation, which was accepted as true at

that early stage, the Court denied Brokenberry’s motion to dismiss. See Dkt.

38 at 6-13. The Court did, however, dismiss Lee’s claims against Harris

County as inadequately pleaded. See id. at 13-16.

After discovery closed, Brokenberry filed a motion for summary

judgment. See Dkt. 47 (filed April 15, 2024); see also Dkt. 39 (March 15, 2024

discovery deadline). Lee submitted a response that also requested a

continuance until Brokenberry could be deposed. See Dkt. 49.

Thereafter, the Court issued an order highlighting Lee’s key testimony

that he lip-read both the inmate’s statement asking for permission to “roll”

someone and Brokenberry’s response. See Dkt. 54 at 1-2. The Court expressed

concerns that “the record provides an inadequate basis to determine whether

Lee possesses the skill to reliably read those individuals’ lips.” See id. at 2. At

that point, the Court signaled that it would hold a Daubert hearing to address

the admissibility of Lee’s lip-reading testimony. See id. at 4.

Brokenberry then submitted supplemental photographs and video

footage showing the cell block where the incident occurred. See Dkt. 56. After

a status conference, the Court determined that a Daubert hearing was

unnecessary but authorized Lee to submit a supplement with portions of

Brokenberry’s recent deposition “that allegedly support [Lee’s] assertion that

it would have been physically possible for him to read Brokenberry’s lips while

she was inside the guard area (a/k/a the ‘picket[ ]’) while he was seated on the

top rear bunk in the upstairs cell.” Dkt. 60 at 1-2.

Lee submitted his supplement, attaching Brokenberry’s deposition.

Dkt. 61. Brokenberry filed a response, arguing that Lee’s contentions strayed

beyond the parameters set in the Court’s order allowing supplementation. See

Dkt. 62. As evident from this procedural history, Brokenberry’s motion for

summary judgment is fully briefed and ripe for resolution.

Legal Standard

Summary judgment is warranted if “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). “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) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material if the issue it

addresses “could affect the outcome of the action.” Dyer v. Houston, 964 F.3d

374, 379-80 (5th Cir. 2020) (quoting Sierra Club, Inc. v. Sandy Creek Energy

Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010)).

When resolving a motion for summary judgment, courts must view the

facts and any reasonable inferences “in the light most favorable to the

nonmoving party.” Amerisure Ins. Co. v. Navigators Ins. Co., 611 F.3d 299, 304

(5th Cir. 2010) (quotation omitted). “[T]he court must disregard all evidence

favorable to the moving party that the jury is not required to believe, and

should give credence to the evidence favoring the nonmoving party ….” Union

Pac. Res. Grp., Inc. v. Rhone-Poulenc, Inc., 247 F.3d 574, 584 (5th Cir. 2001).

In addition, courts must credit all reasonable inferences from the evidence,

without “weigh[ing] evidence or mak[ing] credibility findings.” Seigler v. Wal-

Mart Stores Tex., L.L.C., 30 F.4th 472, 476 (5th Cir. 2022). But

“[u]nsubstantiated assertions, improbable inferences, and unsupported

speculation are not sufficient to defeat a motion for summary judgment.” Luna

v. Davis, 59 F.4th 713, 715 (5th Cir. 2023) (quoting Brown v. City of Hous.,

337 F.3d 539, 541 (5th Cir. 2003)).

Analysis

I. Evidentiary issues

A. Hearsay in witness statements

In support of her summary-judgment motion, Brokenberry proffers

twelve sworn statements made by non-party inmates who were in the cell block

when the underlying events occurred. See Dkt. 47-8–47-19 (DX-7–18).

Brokenberry maintains that only portions of those statements are admissible,

whereas other portions constitute inadmissible hearsay. See Dkt. 47 at 14-15,

19, 23, 25, 29-30. Lee does not address this issue, nor does he rely on any

portion of those sworn statements. See generally Dkt. 49. But Brokenberry’s

submission of the statements warrants resolving what portions may be

inadmissible.

Sworn statements or declarations made under penalty of perjury are

admissible at the summary judgment stage so long as they are based on

personal knowledge, “set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on the matters

stated.” See Fed. R. Civ. P. 56(c)(4); Nissho-Iwai Corp., 845 F.2d 1300, 1306

(5th Cir. 1988) (addressing requirements for unsworn declarations under 28

U.S.C. § 1746). Nevertheless, inadmissible hearsay contained in a sworn

statement is “incompetent summary judgment evidence.” See Goodwin v.

Johnson, 132 F.3d 162, 186-87 (5th Cir. 1997) (rejecting hearsay statements in

affidavit); Molina-Torres v. Harris Cnty., Tex., 2025 WL 73118, at *5 (S.D. Tex.

Jan. 10, 2025) (“An affidavit cannot rest on inadmissible hearsay.”).

Brokenberry is correct that the sworn statements from inmates Ricardo

Quinones, Antonio Tello, and Christian Rosales contain inadmissible hearsay.

Those affiants purport to recount other inmates’ assertions that Brokenberry

authorized the assault on Lee. See Dkt. 47-17 at 3 (Quinones heard from

Rosales that Brokenberry “told the inmates, ‘I’m about to go home, y’all need

to hurry up and do it because I am ready to [go] home’”); Dkt. 47-18 at 3 (Tello

“was told by two other inmates [Brokenberry] gave other inmates the

‘greenlight’ to assault [Lee]”); Dkt. 47-19 at 3 (Rosales heard an inmate (Bobby

Johnson) say that Brokenberry “said yes and to hurry up” after the inmate

gestured toward her with closed fists). Statements about what the affiants

heard from others are classic hearsay that cannot be used to show that

Brokenberry gave permission for the assault to occur. See Fed. R. Evid. 801(c);

see also, e.g., Uzoh v. Walmart Assocs., Inc., 2024 WL 4919642, at *3 (W.D. Tex.

Oct. 21, 2024) (deeming inadmissible statement about what affiant was told,

out-of-court, by someone else). The hearsay statements are therefore excluded.

B. Lee’s “lip reading” assertions

Two key allegations in this case depend entirely on Lee’s testimony

(1) that an unnamed inmate asked Brokenberry “do you want me to roll him,”

accompanied by a hand-rolling gesture and (2) that Brokenberry responded in

the affirmative, stating “Hurry up, I am fixing to get off work.” See Dkt. 47-1

at 3. Yet Lee’s own testimony concedes that he did not hear either of those

statements. See id.; Dkt. 47-3 at 95-96. Instead, Lee claims that he read the

other inmate’s and Brokenberry’s lips. See Dkt. 47-1 at 3; Dkt. 47-3 at 54, 96.

During his deposition, however, Lee equivocated as to whether he

possessed the requisite skill to read someone’s lips. Compare Dkt. 47-3 at 54

(answering “Yes” when asked if he had a skill in reading lips), with id. at 96

(testifying that lip reading “ain’t my skill” and “It’s not my skill”). Moreover,

video footage confirmed that Lee was seated on the top bunk in the right-hand

corner of the cell, well away from the inmate whom he claims had spoken to

Brokenberry, and much farther away from Brokenberry’s position in the

picket, when the alleged exchange occurred (at about 5:22 p.m.). Compare Dkt.

47-4 at 16:02-:53 (DX-4, second floor video), and Dkt. 47-21 at 1:47:18 (DX-19A,

Lee’s deposition video), with Dkt. 47-6 at 00:46-52 (DX-5A, first floor video); see

also Dkt. 47-3 at 140-41.

That evidence raised questions about the admissibility of Lee’s lip-

reading testimony, which this Court posed sua sponte. See Dkt. 54 at 3-4; see

also Bellard v. Gautreaux, 675 F.3d 454, 461 (5th Cir. 2012) (district court may

exclude improper summary judgment evidence sua sponte). In an analogous

Section 1983 case, the Third Circuit flagged a similar issue. See Manasco v.

Rogers, 337 F. App’x 145, 151 (3d Cir. 2009). There, a plaintiff maintained that

he “lip-read” a statement that the defendant, a detention officer, had instructed

other officers to give the plaintiff nothing after the plaintiff’s clothing was

soiled, which raised fact questions as to whether the defendant was entitled to

qualified immunity for violating the plaintiff’s right to adequate hygiene and

sanitation. See id. But the Third Circuit emphasized “that the admissibility

of the ‘lip-read statement’ is a legal issue that must be resolved.” See id. It

was for the district court to determine, on remand, “whether there is any

foundation at all for [plaintiff’s] claim that he has the ability to read lips and

hence [he] is competent to testify as to the meaning of lip movements he claims

to have observed.” Id.

Whether viewed through the lens for evaluating expert testimony under

Daubert, or even for admitting lay testimony, Lee has proffered an insufficient

basis to admit his lip-reading opinions.2 To proffer expert testimony, the

2 The Court need not determine whether lip-reading demands expert testimony or

can be supported by lay opinions.

proponent must prove that the expert is qualified, by virtue of his knowledge,

skill, experience, training, or education, to testify within a specific field or on

a particular subject. See United States v. Cooks, 589 F.3d 173, 179 (5th Cir.

2009); Fed. R. Evid. 702 (proponent’s burden of proof). And even if the expert

has the requisite qualifications, his opinions must rest on a reliable foundation

and be relevant to the issues. See Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 597 (1993); Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.

1998) (en banc).

Opinions from lay witnesses must be “rationally based on the witness’s

perception.” Fed. R. Evid. 701(a). To be admissible, however, a lay opinion

requires an adequate foundation. See Victor J. Gold, 29 Fed. Prac. & Proc.

Evid. § 6254 & nn.52, 53 (2d ed.) (collecting authorities). “[V]ague, general

statements about the basis for lay opinion are insufficient.” Id. “When a

witness has not identified the objective bases for his opinion, the proffered

opinion obviously fails completely to meet the requirements of Rule 701 ...

because there is no way for the court to assess whether it is rationally based

on the witness’s perceptions.” United States v. Garcia, 291 F.3d 127, 140 (2d

Cir. 2002) (quotation omitted). Moreover, “where the lay witness observes

matters that can be comprehended only with specialized experience, it may be

necessary to demonstrate that the witness has such experience.” Francois v.

Gen. Health Sys., 459 F. Supp. 3d 710, 725 (E.D. La. 2020) (quoting 29 Fed.

Prac. & Proc. § 6254).

Lip reading, quite evidently, requires at least some specialized skill. But

even during his deposition, Lee gave inconsistent signals as to whether he

possesses lip-reading abilities. Compare Dkt. 47-3 at 54, with id. at 96.

Regardless, the video footage and Brokenberry’s supplemental photographs,

see Dkt. 56-1 at 5-22 (photos of both levels of the cell block and from inside the

picket), fatally undermine the notion that Lee could have read each speaker’s

lips. The inmate was turned sideways on the staircase toward the picket—not

facing Lee—and standing an appreciable distance away from Lee’s position

atop the rearmost second floor bunk. Moreover, uncontroverted evidence

shows that there are only limited angles at which an inmate can see through

a sliver at the top of the picket’s glass, to the adjoining cell block. See Dkt. 61-

12 at 46. Inmates cannot see officers within the picket due to the mirrored

glass, the lights being off inside, and the officer being seated at a desk

surrounded by screens.3 See id. (Brokenberry’s testimony explaining these

facts); see also Dkt. 56-1 at 5-13 (photos inside and outside the picket).

3 Contrary to Lee’s contentions, Dkt. 61 at 11-12, Brokenberry clearly distinguished

between an inmate’s ability to see through a small sliver of glass at the top of the

picket, to the adjoining cell block, and an inmate’s inability to see her within the

picket itself.

Viewed in Daubert’s terms, Lee has not shown that he has both the

expertise and a reliable basis to opine that the other inmate or Brokenberry

said what Lee claims. And even under the framework for lay testimony, Lee

has not proffered an adequate foundation for his opinions about what each

speaker’s lip movements meant. He has not sufficiently demonstrated that he

has any lip-reading expertise, generally, or could have read the speakers’ lips

in this instance, given where the speakers were located relative to his position

on the second-floor bunk, the picket’s mirrored glass, and Brokenberry’s

position within that picket. Accordingly, Lee’s assertions that the inmate

asked for permission to attack Lee, and that Brokenberry authorized it, are

inadmissible and therefore excluded.

II. Summary judgment motion

As Brokenberry maintains, the exclusion of inadmissible hearsay and

lip-reading opinions leaves Lee unable to raise a genuine issue of material fact

on either his conspiracy or failure-to-protect claims under Section 1983. See

Dkt. 47 at 24-25, 29-30 (Brokenberry’s motion for summary judgment); see also

Dkt. 53 at 4-6 (Brokenberry’s reply). The Court agrees.

A. Lee’s request for a continuance is moot.

After Brokenberry initially filed her summary-judgment motion, Lee

sought a continuance of the motion, citing his need to depose Brokenberry. See

Dkt. 49. Later, however, Lee submitted a supplement with Brokenberry’s

deposition.4 See Dkt. 61 (Lee’s supplement); Dkt. 61-12 (Brokenberry’s

deposition). Lee’s request for a continuance is therefore denied as moot.

B. Conspiracy claim

Lee’s lack of admissible evidence that Brokenberry authorized an inmate

to mount the attack defeats his claim that Brokenberry conspired with an

inmate to violate Lee’s due process rights. See Dkt. 23 at 5-6 (alleging

conspiracy under § 1983); see also Dkt. 61 at 7 (Lee relying on his lip-reading

testimony to substantiate a conspiracy). For this type of claim, a plaintiff must

show an agreement between at least one state actor and a private citizen to

deprive the plaintiff of a constitutional right. See Arsenaux v. Roberts,

726 F.2d 1022, 1024 (5th Cir. 1982) (requiring an agreement to commit an

illegal act); Abdeljalil v. City of Ft. Worth, 55 F. Supp. 2d 614, 622 (N.D. Tex.

1999) (stating requirements for Section 1983 conspiracy).

The record contains no admissible evidence that Brokenberry agreed

with or authorized an inmate’s request to attack Lee. There is no evidence that

any such request was made, nor that Brokenberry agreed to allow it.

Accordingly, Brokenberry is entitled to summary judgment on Lee’s conspiracy

claim.

4 Brokenberry moved to strike Lee’s supplemental brief that attempted to bolster his

prior summary-judgment arguments with new contentions. See Dkt. 62 at 1-3. The

Court’s resolution of the merits renders it unnecessary to address Brokenberry’s

procedural challenge.

C. Failure-to-protect claim

1. The record fails to show that Brokenberry was deliberately

indifferent to a substantial risk of serious harm to Lee.

Lee’s contention that Brokenberry violated his constitutional rights by

failing to protect him from the attack fares no better. He fails to raise a

genuine issue of material fact on this Section 1983 claim.

Like the Eighth Amendment, which applies only to convicted prisoners,

the Due Process Clause confers upon pre-trial detainees a constitutional right

to “basic human needs, including medical care and protection from harm,

during their confinement.” Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016)

(quoting Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996) (“Hare

II”)); see also, e.g., Brown v. Harris Cnty., Tex., 2010 WL 774138, at *5 (S.D.

Tex. Mar. 2, 2010) (explaining Eighth Amendment and Due Process

protections). This duty requires prison officials “to protect prisoners from

violence at the hands of their fellow inmates.” Longoria v. Texas, 473 F.3d 586,

592 (5th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994)).

“Prison officials are not, however, expected to prevent all inmate-on-

inmate violence.” Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003) (citing

Farmer, 511 U.S. at 834). Those officials “can be held liable for their failure to

protect an inmate only when they are deliberately indifferent to a substantial

risk of serious harm.” Id.

“Deliberate indifference is an extremely high standard to meet.” Arenas

v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019) (quoting Domino v. Tex. Dep’t of

Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001)). It is not enough to show a

negligent or even grossly negligent response to a substantial risk of serious

harm. See Torres v. Livingston, 972 F.3d 660, 663 (5th Cir. 2020) (quoting

Williams v. Banks, 956 F.3d 808, 811 (5th Cir. 2020)); see also Adames, 33 F.3d

at 514 (reversing jury verdict where, “[a]t best,” the plaintiff showed that a

warden “was negligent for failing to infer that inmates at the McConnell Unit

were in danger”).

To constitute deliberate indifference, (1) “‘the official must both be aware

of facts from which the inference could be drawn that a substantial risk of

serious harm exists,’ and (2) ‘[s]he must also draw the inference.’” Williams v.

Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc) (citing Farmer, 511 U.S.

at 837). Conversely, prison officials will not be liable for a failure to protect if

(1) “they were unaware even of an obvious risk to inmate health or safety,”

(2) “they did not know of the underlying facts indicating a sufficiently

substantial danger,” (3) “they knew of the underlying facts but believed (albeit

unsoundly) that the risk to which the facts gave rise was insubstantial or

nonexistent,” or (4) they “knew of a substantial risk to inmate health or safety

... [and] responded reasonably to the risk, even if the harm was not ultimately

averted.” Farmer, 511 U.S. at 844-45.

Lee testified that he complained to Brokenberry about fearing for his

safety when he arrived at the cell block. See Dkt. 47-3 at 37. This complaint,

which lacks specifics, is insufficient to show either that Lee faced a substantial

risk of serious harm, or that Brokenberry was deliberately indifferent to Lee’s

safety. See, e.g., Armstrong v. Price, 190 F. App’x 350, 353 (5th Cir. 2006) (per

curiam) (multiple complaints of vague threats by unnamed inmates were

insufficient); Hicks v. Ashworth, 2024 WL 3243474, at *5, 7 (S.D. Tex. June 26,

2024) (concluding plaintiff’s allegations that he “told the defendants that he

believed his life was in danger [were] insufficient to show that any of the

defendants were aware of facts from which they could infer that [he] faced a

substantial risk of serious harm”); Adams v. Collier, 2022 WL 456535, at *6-7

(E.D. Tex. Jan. 19, 2022) (inmate’s fear of being attacked due to a fight with

someone else a month earlier did not put officials on notice that the inmate

faced a substantial risk of serious harm), adopted by 2022 WL 446748 (E.D.

Tex. Feb. 14, 2022).

Lee also appears to blame Brokenberry for directing him, over the

intercom, to stop masturbating. See Dkt. 61 at 5-7 (complaining that

Brokenberry “put other prisoners on notice that Plaintiff was engaging in

personal sexual activities”). But Lee admitted that he did not know the other

inmates. See Dkt. 47-3 at 75 (Lee’s testimony that “I don’t know nobody in

there”). Nor is there any indication that the inmates had previously assaulted

others for masturbating. Moreover, apart from Lee’s baseless speculation that

other inmates would be “jealous” of his actions, see Dkt. 47-3 at 83-84—which

is not evidence—Lee offers nothing indicating that Brokenberry knew or

believed her announcement would incite violence against him or that doing so

would create a substantial risk of serious harm. Cf. Reaux v. Strain, 2011 WL

3475397, at *7 (E.D. La. Aug. 9, 2011) (rejecting assertion that detention

official was liable for an attack that occurred after the official told inmates that

plaintiff was a former correction officer; plaintiff had no prior problems with

the inmates who attacked him).

Lee also maintains that the actions of other inmates, including the

gesture by the inmate on the stairs, presaged the attack. Yet there is no

evidence that Brokenberry saw the inmate’s gesture, nor that she would have

or did construe it as a request to attack Lee even if she had seen it.

Lee’s attempt to cast the inmates’ ensuing activities as nefarious—

whether they involved going up and down the stairs, moving or playing with

brooms or mops, grabbing towels, putting on shoes or shirts, or messing with

a hot water device—is tainted by hindsight. See, e.g., Dkt. 47-3 at 66 (Lee’s

assertions that inmates donned towels and masks because “they fixing to stab

me. They fixing to hit me with boiling water. They’re fixing to hit me with

brooms”), 68 (Lee’s assertions that the inmates’ conduct shows that they were

going to beat him up), 138 (Lee asserting that two inmates walking were

“plotting”), 140-42 (claiming that inmates downstairs were about to “roll

somebody”), 147-49 (alleging that an inmate was “Talibanning” by “putting his

little mask on”), 151-52 (claiming that inmate playing with a broom was “fixing

to beat my ass with that pole”), 156-57 (asserting that inmate was “checking”

if the “boiler” or “hot pot” was hot); see also Dkt. 50-4 at 2 (Lee’s affidavit

claiming that inmates “began ‘lacing up’, ‘masking up’, putting on protective

gear, heating water, gathering weapons, and otherwise preparing for an

assault”). “Deliberate indifference,” however, “must be viewed from

[Brokenberry’s] perspective at the time in question, not with hindsight’s

perfect vision.” Pratt v. Deville, 2016 WL 1602948, at *6 (W.D. La. Feb. 23,

2016) (quoting Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998)). In

reality, the video footage preceding the attack shows inmates engaging in

unremarkable activities, certainly nothing so obviously indicative of an

impending act that a factfinder could infer that Brokenberry knew of and

recklessly disregarded that possibility. See Norton v. Dimazana, 122 F.3d 286,

291 (5th Cir. 1997) (requiring “subjective recklessness” as the test for

deliberate indifference) (citing Farmer, 511 U.S. at 838-40).

Thus, even assuming that Brokenberry saw the pre-attack actions

depicted on the video footage, there is no evidence that their actions signaled

a substantial risk of serious harm to anyone, generally—much less Lee,

specifically. Nor is there evidence that Brokenberry believed that the inmates

posed a serious threat to Lee, such that she could have been deliberately

indifferent for failing to respond to any such threat. Nothing in the record

indicates that the inmates involved in the attack had ever harmed or

attempted to harm a fellow inmate, or that Brokenberry knew of any such

history. As already noted, Lee did not know those inmates. See Dkt. 47-3 at

75. Merely arguing that some of the inmates’ conduct should have aroused

suspicion is not enough to render Brokenberry liable. See Torres, 972 F.3d at

663 (“Deliberate indifference cannot be inferred merely from a negligent or

even a grossly negligent response to a substantial risk of serious harm.”)

(quoting Banks, 956 F.3d at 811).

It is also undisputed that Brokenberry called for assistance after the

attack began, which prompted an officer (called a “rover”) to arrive in the

cellblock within 70 seconds.5 Compare Dkt. 47-6 at 10:24 (start of the attack),

with id. at 11:35 (rover appears); see also Dkt. 61-12 at 30, 34 (Brokenberry’s

testimony that she called for a rover when she saw Lee lose his footing after

the fight appeared on the camera footage she was watching). She could not

leave the picket because that would permit an inmate to enter, open the doors,

5 The evidence fails to show that Brokenberry saw the beginning of the attack. At

the time, she was watching footage on-screen both from Lee’s cellblock and the

adjoining one. See Dkt. 61-12 at 18. Her uncontroverted testimony reflects that there

are blind spots where movements in the cellblock are not caught on camera. See id.

at 29, 34.

and release everyone from the cellblock. See Dkt. 61-12 at 34. Brokenberry

therefore took the only appropriate action she could take when realizing that

Lee was being assaulted.

In sum, Lee presented no admissible evidence that Brokenberry was

deliberately indifferent to a substantial risk of serious harm posed by the

inmates who assaulted him. Summary judgment is therefore warranted on his

Section 1983 claim.

2. Brokenberry is also entitled to qualified immunity.

As a further impediment, Lee cannot overcome Brokenberry’s qualified

immunity. “The doctrine of qualified immunity protects government officials

‘from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There are two steps to the

qualified immunity inquiry, which courts can address in any order. See id. at

236. First, courts determine “whether the facts, [t]aken in the light most

favorable to the party asserting the injury, ... show the officer’s conduct

violated a [federal] right[.]” Tolan v. Cotton, 572 U.S. 650, 655-56 (2014)

(quotation omitted). To satisfy this requirement, it must be shown that the

official’s actions were objectively unreasonable. The official’s actions “must be

judged in light of the circumstances that confronted [her] and the facts that

were available to [her], without the benefit of hindsight.” Howe v. Officer John

Doe #1, 2017 WL 4676830, at *2 (S.D. Tex. Oct. 13, 2017) (collecting

authorities).

Second, the court evaluates “whether the right in question was ‘clearly

established’ at the time of the violation.” Tolan, 572 U.S. at 656 (quoting Hope

v. Pelzer, 536 U.S. 730, 739 (2002)). To be clearly established, “[t]he contours

of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). Once qualified immunity has been invoked, the

plaintiff bears the burden to “rebut the defense by establishing that the

official’s allegedly wrongful conduct violated clearly established law and that

genuine issues of material fact exist regarding the reasonableness of the

official’s conduct.” Gates v. Tex. Dep’t of Protective & Regul. Servs., 537 F.3d

404, 419 (5th Cir. 2008).

As the analysis above reflects, there is no evidence that Brokenberry’s

conduct violated any clearly established right or was objectively unreasonable.

Lee’s general concern about fearing for his safety was too vague to alert

Brokenberry that he faced a substantial risk of serious harm. Likewise, no

evidence suggests that Brokenberry knew her order directing Lee to stop

masturbating would precipitate an attack. There is also no admissible

evidence that Brokenberry saw the inmate’s gesture that supposedly indicated

an intent to begin an attack. Even if she saw the ensuing activities of other

inmates, nothing indicates that Brokenberry concluded or recklessly

disregarded an obvious likelihood that Lee would be attacked. And

Brokenberry acted properly by remaining in the picket and promptly calling

for assistance once she saw the attack.

As a result, Lee has failed to meet his burden to overcome Brokenberry’s

qualified immunity. For this additional reason, summary judgment is

warranted on Lee’s failure-to-protect claim.

Conclusion

For the foregoing reasons, it is ORDERED that Defendant Olivia

Brokenberry’s motion for summary judgment (Dkt. 47) is GRANTED.

Signed on March 19, 2025, at Houston, Texas.

(A,

United States Magistrate Judge

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